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PANEL ONE OF THE TENTH HEARING OF THE NATIONAL COMMISSION ON 

TERRORIST ATTACKS UPON THE UNITED STATES RE: "LAW ENFORCEMENT 

AND THE INTELLIGENCE COMMUNITY" THOMAS H. KEAN, CHAIR; LEE H. 

HAMILTON, VICE CHAIR PHILIP D. ZELIKOW PRESENTS STAFF STATEMENT: 

"LAW ENFORCEMENT, COUNTERTERRORISM, AND INTELLIGENCE COLLECTION 

IN THE UNITED STATES PRIOR TO 9/11"

WITNESS: LOUIS J. FREEH, FORMER DIRECTOR OF THE FBI

9:01 A.M. EDT, TUESDAY, APRIL 13, 2004 

MR. KEAN: (Sounds gavel.) Good morning. As chair of the 

National Commission on Terrorist Attacks on the United States, I 

hereby convene this commission's 10th public hearing. The 

hearing will run all today and tomorrow. Our focus for the next 

two days will be "Law Enforcement and the Intelligence 

Community." 

As we did with our two prior sets of hearings this calendar 

year, we precede each series of witnesses with a statement from 

the Commission staff. These statements are informed by the work 

of the Commissioners, as well as the staff, and they represent 

the staff's best efforts to reconstruct the factual record of 

what happened. Judgments and recommendations are for 

commissioners and the Commission to make, and of course we'll do 

that in the course of our work, and most definitively and 

finally in our final report. 

Viewers, by the way, who are watching at home can obtain 

staff statements at www.9-11commission.gov. 

Before we begin, let me make just a brief request to members 

of the audience who have taken the time to be with us today. 

We're going to be hearing from a lot of witnesses in the course 

of the next two days. As a courtesy to them and the 

Commissioners, I ask you if you could refrain from any loud 

demonstrations of approval or disapproval because that simply 

takes time away from the witnesses and takes time away from the 

Commission members who are questioning. There are ample other 

ways in which you can inform the Commission of your opinions, 

and I encourage you to avail yourselves of them. On behalf of 

the witnesses, on behalf of the staff and the Commission, thank 

you very much for your cooperation. 
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We will now hear our first staff statement. It is entitled, 

"Law Enforcement, Counterterrorism and Intelligence Collection 

in the United States Prior to 9/11." 

It will be read by our executive director, Phil Zelikow, of 

the Commission staff. 

MR. ZELIKOW: Members of the Commission, with your help your 

staff has developed initial findings regarding law enforcement 

and intelligence collection in the United States prior to the 

9/11 attacks. These findings may help frame some of the issues 

to be discussed during this hearing and inform the development 

of your judgments and recommendations. 

This statement reflects the results of our work so far. We 

remain ready to revise our understanding of this topic as our 

investigation progresses. 

This staff statement represents the collective efforts of a 

number of members of our staff. Caroline Barnes, Christine 

Healey, Lance Cole, Michael Jacobson, Peter Rundlet, Doug 

Greenburg and Barbara Grewe did most of the investigative work 

reflected in this statement. 

We were fortunate in being able to build upon strong 

investigative work done by the congressional Joint Inquiry and 

by the Department of Justice's Office of the Inspector General. 

We've obtained excellent cooperation from the FBI and the 

Department of Justice, both in Washington and in six FBI field 

offices across the United States. 

The role of the FBI. The FBI played the lead role in the 

government's domestic counterterrorism strategy before September 

11. In the 1990s most of the FBI's energy was devoted to afterthe-fact investigations of major terrorist attacks in order to 

develop criminal cases. Investigating these attacks always 

required an enormous amount of resources. As most of these 

attacks occurred overseas, many of the FBI's top terrorism 

investigators were deployed abroad for long periods of time. 

New York was the office of origin for the al Qaeda program, 

and consequently where most of the FBI's institutional knowledge 

on al Qaeda resided. Working closely with the U.S. Attorney for 

the Southern District of New York, the Justice Department and 

the U.S. intelligence community, the FBI's New York field office 

was often successful in these investigations. Many of the 

perpetrators of these plots were identified, arrested, 
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prosecuted and convicted. These were episodes such as the World 

Trade Center bombing, the Landmarks plot, the Manila airlines 

plot, the Khobar Towers bombing, the East Africa embassy 

bombings, the Millennium plot and the U.S.S. Cole bombing. 

Going to the top of page 3 of the statement. 

The approach to counterterrorism. The FBI took a traditional 

law enforcement approach to counterterrorism. Its agents were 

trained to build cases. Its management was deliberately 

decentralized to empower the individual field offices and the 

agents in the street. The Bureau rewarded agents based on 

statistics reflecting arrests, indictments and prosecutions. 

As a result, fields such as counterterrorism and 

counterintelligence, where investigations generally result in 

fewer prosecutions, were viewed as backwaters. Agents developed 

information in support of their own cases, not as part of a 

broader, more strategic effort. 

Given the poor state of the FBI's information systems, field 

agents usually did not know what investigations agents in their 

own office, let alone in other field offices, were working on. 

Nor did analysts have easy access to this information. As a 

result, it was almost impossible to develop an understanding of 

the threat from a particular international terrorist group. 

Agents also investigated their individual cases with the 

knowledge that any case information recorded on paper and stored 

in case files was potentially discoverable in court. Thus, there 

was a disincentive to share information, even with other FBI 

agents and analysts. Analysts were discouraged from producing 

written assessments which could be discoverable and used to 

attack the prosecution's case at trial. 

In the investigative arena, the field office had primacy. 

Counterterrorism investigations were run by the field, not 

headquarters. Moreover, the field office that initiated a case 

maintained control over it, an approach the FBI called the 

"Office of Origin Model." This decentralized management 

structure allowed field offices to set their own priorities, 

with little direction from headquarters. 

Management priorities and challenges. The FBI determined 

early on in the 1990s that a preventive posture was a better way 

to counter the growing threat from international terrorism. In 

its first budget request to Congress after the 1993 World Trade 
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Center bombing, the FBI stated that, "merely solving this type 

of crime is not enough; it is equally important that the FBI 

thwart terrorism before such acts can be perpetrated." 

By the late 1990s the FBI recognized that certain limitations 

undermined a preventive counterterrorism strategy and it 

initiated several significant reforms. Yet the FBI's leadership 

confronted two fundamental challenges in countering terrorism. 

First, the FBI had to reconcile this new priority with its 

existing agenda. This immediately required choices about whether 

to divert experienced agents or scarce resources from criminal 

or other investigative or intelligence work to terrorism. As the 

terrorism danger grew, Director Freeh faced the choice of 

whether to lower the priority the FBI attached to work on 

general crime, including the war on drugs, and allocate these 

resources to terrorism. 

The Department of Justice inspector general found that when 

the FBI designated national and economic security as its top 

priority in 1998, it did not shift its human resources 

accordingly. Although the FBI's counterterrorism budget tripled 

during the mid-1990s, FBI counterterrorism spending remained 

relatively constant between fiscal years 1998 and 2001. The 

inspector general stated that before 9/11, the Bureau devoted 

significantly more special agent resources to traditional law 

enforcement activities, such as white collar crime, organized 

crime, drug and violent crime investigations, than to domestic

and international terrorism issues. According to another 

external review, there were twice as many agents devoted to drug 

enforcement matters as to counterterrorism. On September 11th, 

2001, only about 6 percent of FBI's total personnel worked on 

counterterrorism. 

Former FBI officials told us that prior to 9/11, there was 

not sufficient national commitment or political will to dedicate 

the necessary resources to counterterrorism. Specifically, they 

believed that neither Congress nor the Office of Management and 

Budget fully understood the FBI's counterterrorism resource 

needs, nor did the FBI receive all it requested from the 

Department of Justice under Attorney General Janet Reno. 

Reno told us that the Bureau never seemed to have sufficient 

resources, given the broad scope of its responsibilities. She 

said, in light of the appropriations FBI received, it needed to 

prioritize and put counterterrorism first. She also said that 

Director Freeh seemed unwilling to shift resources to terrorism 
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from other areas, such as violent crime. Freeh said it was 

difficult to tell field executives they needed to do additional 

counterterrorism work without additional resources. 

Finally, even though the number of agents devoted to 

counterterrorism was limited, they were not always fully 

utilized in the field offices. We learned through our interviews 

that prior to 9/11, field agents often were diverted from 

counterterrorism or other intelligence work, in order to cover 

major criminal cases. 

The second core challenge was a legal issue that became a 

management challenge as well. Certain provisions of federal law 

had been interpreted to limit communication between agents 

conducting intelligence investigations and the criminal 

prosecution units of the Department of Justice. This was done so 

that the broad powers for gathering intelligence would not be 

seized upon by prosecutors trying to make a criminal case. The 

separation of intelligence from criminal investigations became 

known as "the wall." 

New procedures issued by Attorney General Reno in 1995 

required the FBI to notify prosecutors “when facts and 

circumstances are developed in a foreign intelligence or 

counterintelligence investigation that reasonably indicate a 

significant federal crime has been, is being or may be 

committed.” The procedures, however, prohibited the prosecutors 

from, quote, "directing or controlling," close quote, the 

intelligence investigation. 

Over time, the wall requirement came to be interpreted by the 

Justice Department and particularly the Foreign Intelligence 

Surveillance Court as imposing an increasingly stringent barrier 

to communications between FBI intelligence agents and criminal 

prosecutors. 

Despite additional guidance on information sharing issued by 

Attorney General Reno in February 2000, and by Deputy Attorney 

General Larry Thompson in August, 2001, the wall remained a 

source of considerable frustration and concern within the 

Justice Department. Justice Department prosecutors and FBI 

criminal agents were responsible for large criminal cases like 

the embassy bombings. The intelligence side of the FBI, though, 

had the legal tools essential for domestic intelligence work, 

such as FISA surveillance. In this environment, domestic 

counterterrorism efforts were impaired. 
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Attempts at reform. There were attempts at reform. Start with 

the 1998 Strategic Plan. The FBI issued a five-year strategic 

plan in May, 1998, spearheaded by Deputy Director Robert Bryant. 

The plan mandated development of a strong intelligence base, 

including human sources, intelligence collection and reporting 

requirements. As a result of the strategic plan, the FBI created 

an Office of Intelligence that was superseded by a new 

Investigative Services Division created in 1999. That division 

was intended to strengthen the FBI's strategic analysis 

capability across the spectrum of traditional criminal, 

counterintelligence and counterterrorism cases. Thus, for the 

first time, the strategic analysis function was made independent 

of the operational divisions. 

The Investigative Services Division also was intended to 

increase the professional stature of analysts. An internal 

review of the FBI's intelligence analysis function at the time 

found that 66 percent of the Bureau's analysts were not 

qualified to perform analytical duties. The review made 

recommendations for improvements. It appears that these 

recommendations were either not implemented or not enforced. The 

new division did not succeed. FBI officials told us that it did 

not receive sufficient resources, and there was ongoing 

resistance to its creation from the senior managers in the FBI's 

operational divisions. Those managers feared losing control, 

they feared losing resources, they feared they would be unable 

to get the assistance they wanted from the new division's 

analysts. Director Robert Mueller dismantled the division soon 

after the 9/11 attacks. We will discuss his changes in Staff 

Statement No. 12. 

The Counterterrorism Division and MAXCAP 05. In 1999, the FBI 

also created separate Counterterrorism and Counterintelligence 

Divisions to ensure enough focus on these missions. 

By late 1999, Dale Watson, the first head of the new 

Counterterrorism Division, recognized the urgent need to elevate 

the counterterrorism capacity of the FBI organization-wide. He 

developed the strategy he called MAXCAP 05. His goal was that 

the Bureau reach its maximum feasible capacity in 

counterterrorism by 2005 through a strategy focused on 

intelligence gathering, valid and straightforward reporting and 

tracking mechanisms, effective interagency liaison and 

cooperation, and accountable program management. 

During July and August of 2000, at four regional conferences, 

Counterterrorism Division leadership presented the new strategy 
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to all of the FBI's assistant directors and special agents in 

charge of the FBI's 56 field offices. Field executives told 

Watson they did not have the analysts, linguists or technically 

trained experts to carry out the strategy. Watson asked for help 

from the Training Division and the new Investigative Services 

Division. Watson told us that trying to implement this strategy 

was the hardest thing he had ever done in his life. 

One year after the regional conferences, almost every FBI 

field office's counterterrorism program was assessed to be 

operating at far below maximum capacity. Watson thought the FBI 

had to step up to a major choice of mission, perhaps turning 

over a significant share of narcotics enforcement to the DEA in 

order to free up resources for countering terrorism. Although he 

thought FBI director Freeh was sympathetic, most FBI managers 

opposed such a fundamental change before 9/11, and none of the 

pre-9/11 budgets made that choice. 

The FBI's new counterterrorism strategy was not a focus of 

the Justice Department in 2001. Attorney General Ashcroft told 

us that upon his arrival at the department, he faced a number of 

challenges that signaled the need for reform at the FBI. He 

mentioned the Ruby Ridge and Waco incidents, the Wen Ho Lee 

investigation, FBI agent Robert Hanssen's espionage, the late 

discovery of FBI documents related to the Timothy McVeigh case, 

and public disclosures about lost laptops and firearms. 

The new Bush administration proposed an 8 percent increase in 

overall FBI funding for fiscal year 2002. This included the 

largest proposed percentage increase in the FBI's 

counterterrorism program since fiscal year 1997. On May 9, 2001, 

Attorney General John Ashcroft testified at a hearing on U.S. 

efforts to combat terrorism. He testified that the Justice 

Department had no higher priority than to protect citizens from 

terrorist attacks. 

On May 10th, the department issued guidance for developing 

the fiscal year 2003 budget that made reducing the incidence of 

gun violence and reducing the trafficking of illegal drugs 

priority objectives. Watson told us that he almost fell out of 

his chair when he saw the memo, because it made no mention of 

counterterrorism. The department prepared a budget for fiscal 

year 2003 that did not increase counterterrorism funding over 

its pending proposal for fiscal year 2002. It did include an 

enhancement for the FBI's information technology program 

intended to support the collection, analysis and rapid 

dissemination of information pertinent to FBI investigations. 
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Acting FBI Director Thomas Pickard told us he made an appeal 

to Attorney General Ashcroft for further counterterrorism 

enhancements not included in this budget proposal. On September 

10th, the attorney general rejected that appeal. 

Despite recognition by the FBI of the growing terrorist 

threat, it was still hobbled by significant deficiencies. Some 

of those deficiencies were, for instance, in intelligence 

collection. Intelligence collection efforts should begin with a 

strategy to comprehend what is being collected, identify the 

gaps, and push efforts toward meeting requirements identified by 

strategic analysis. Prior to 9/11 the FBI did not have a process 

in place to manage its collection efforts effectively. It did 

not identify intelligence gaps. Collection of useful 

intelligence from human sources was limited. By the mid-1990s 

senior managers were concerned the Bureau's statistically-driven 

performance system was resulting in a roster of mediocre 

sources. 

The wall between criminal and intelligence investigation 

apparently caused agents to be less aggressive than they might 

otherwise have been in pursuing Foreign Intelligence 

Surveillance Act (FISA) surveillance powers in counterterrorism 

investigations. Moreover, the FISA approval process involved 

multiple levels of review, which also discouraged agents from 

using such surveillance. Many agents told us that the process 

for getting these FISA packages approved was incredibly lengthy 

and inefficient. Several agents added that, prior to 9/11, FISAderived intelligence information was not fully exploited anyway, 

but was collected primarily to justify continuing the 

surveillance. 

The FBI did not dedicate sufficient resources to the 

surveillance or translation needs of counterterrorism agents. 

Surveillance personnel were more focused on counterintelligence 

and drug cases. Many field offices did not have surveillance 

squads before 9/11. Similarly, the FBI did not have a sufficient 

number of translators proficient in Arabic and other languages 

useful in counterterrorism investigations, and that resulted in 

a significant backlog of untranslated FISA intercepts by early 

'01. 

FBI agents received very little formalized training in the 

counterterrorism discipline. Only three days of the 16-week new 

agents course were devoted to national security matters of any 

kind, counterterrorism or counterintelligence, and most 
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subsequent counterterrorism training was received on an ad hoc 

basis or on the job. 

Additionally, the career path for agents necessitated 

rotations between headquarters and the field in a variety of 

work areas, making it difficult for agents to develop expertise 

in any particular area, especially counterterrorism or 

counterintelligence. 

We were told that very few field managers of the FBI had any 

counterterrorism experience, and thus either were not focused on 

the issue or did not have the expertise to run an effective 

program. 

Finally, agents' investigative activities were governed by 

Attorney General Guidelines, first put in place in 1976, the socalled Levy Guidelines, and revised in 1995, to guard against 

misuse of government power. The guidelines limited the 

investigative methods and techniques available to agents 

conducting preliminary investigations of potential terrorist 

activities or connections. They prohibited the use of publicly 

available source information, such as that found on the 

Internet, unless specified criteria were present. These 

restrictions may have had the unintended consequence of causing 

agents to even avoid legitimate investigative activity that 

might conceivably be viewed as infringing on religious liberties 

or lawful political protest. Agents we interviewed believed 

these limitations were too restrictive and adversely affected 

their intelligence investigations. 

Strategic Analysis. It is the role of the strategic analyst 

to look across individual operations and cases to identify 

trends in terrorist activity and develop broad assessments of 

the terrorist threat to U.S. interests. The goal is not 

abstract. Such analysis drives collection efforts. It is the 

only way to evaluate what the institution does not know. The FBI 

had little understanding of, or appreciation for, the role of 

strategic analysis in driving investigations or allocating 

resources. 

The role of the tactical analyst, on the other hand, is 

geared toward providing direct support to investigations. Agents 

viewed tactical analysts as performing duties that advanced 

their cases. They failed to see the value of strategic analysis, 

finding it too academic and therefore irrelevant. Creation of 

the ill-fated Investigative Services Division may even have 
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worsened this attitude by distancing strategic analysts from 

agents in the operational divisions. 

Moreover, strategic analysts had difficulty getting access to 

the FBI and intelligence community information they were 

expected to analyze. The poor state of the FBI's information 

systems meant that analysts' access to information depended in 

large part on their personal relationships with individuals in 

the units or squads where the information resided. In short, 

analysts didn't know what they didn't know. As a result, prior 

to 9/11 relatively few strategic counterterrorism analytical 

products had been completed. Indeed, the FBI had never completed 

an assessment of the terrorist threat to the U.S. homeland. 

According to the Department of Justice inspector general, FBI 

officials were comfortable relying on their individual 

professional judgment regarding the terrorist threat and, quote, 

"did not value a formal written assessment that uses a 

structured methodology," close quote. 

Compounding this situation was the FBI's tradition of hiring 

analysts from within the agency, rather than recruiting 

individuals with the relevant educational background and 

expertise. In our field visits, we encountered several 

situations in which poorly qualified administrative personnel 

were promoted to analyst positions as a reward for good 

performance in other positions. When the FBI hired or promoted 

people with appropriate analytical skills, the Bureau's lack of 

a long-term career path and a professional training program 

caused many capable individuals to leave the Bureau or move 

internally to other positions. 

In addition, managers often did not use qualified analysts 

effectively, especially in the field. Some field analysts we 

interviewed told us they were viewed as "über-secretaries," 

expected to perform any duty that was deemed non-investigative, 

including data entry and answering phones. Headquarters managers 

often did not have sufficient staff support, so they too turned 

to analysts to perform policy-oriented and programmatic duties 

that were not analytic in nature. 

Knowledge management. Prior to 9/11, the FBI did not have an 

adequate ability to know what it knew. In other words, the FBI 

did not have an mechanism for effectively capturing or sharing 

its institutional knowledge. FBI agents did create records of 

interviews and other investigative efforts, but there were no 

reports officers to condense the information into meaningful 

intelligence that could then be retrieved and disseminated. 
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The FBI's private primary information management system, 

using 1980s technology already obsolete when installed in 1995, 

limited the Bureau's ability to share its information internally 

and externally. The FBI did not have an effective system for 

storing, searching or retrieving information of intelligence 

value contained in its investigative files. 

Director Freeh told us that he went before congressional 

staff and members twice a year "begging and screaming" for funds 

to improve the FBI's information technology infrastructure. 

Former Department of Justice and FBI officials told us that the 

FBI lacked personnel with the necessary expertise leading its 

information technology improvement efforts, increasing Congress'

reluctance to support funding proposals in this area. 

Once Freeh brought former 30-year IBM executive Robert Dies 

on board in 2000, the Bureau developed a comprehensive IT plan 

that Congress did support. The FBI received congressional 

approval in late 2000 for the Trilogy project, a 36-month plan 

for improving its networks, systems and software. Dies told us 

that given the enormity of the task at hand, his goal was merely 

to "get the car out of the ditch." As of September 2001, the 

project was under way but by no means fully implemented. 

The FBI's Joint Terrorism Task Forces, JTTFs, were the 

primary mechanism for sharing counterterrorism information with 

other law enforcement agencies in the field. The FBI expanded 

the number of JTTFs throughout the 1990s; by 9/11 there were 35. 

The JTTFs, while useful, had limitations. They set their own 

priorities in accordance with regional and field office 

concerns; most were not fully staffed. Many state and local 

entities believed they would gain little from having a 

representative on a JTTF. Most detailees were mainly there as 

liaison rather than as full working members of the JTTFs, and 

many did not have access either to FBI information systems or 

their own home agency systems while in the FBI workspace. 

Moreover, the supervisors in their home agency chains of command 

often did not have security clearances, making it difficult to 

share important intelligence information. 

We were told that at headquarters, information sharing 

between the FBI and CIA improved greatly when the agencies began 

exchanging senior counterterrorism officials in 1996. After

serving on rotation, they understood each other's agencies and 

missions better than they had before. But as will be discussed 

in the next staff statement, there were other problems with 
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information sharing between the FBI and the CIA. The FBI's 

unwillingness or inability to share information reportedly 

frustrated the White House national security officials. Richard 

Clarke told us that the National Security Council never received 

anything in writing from the FBI whatsoever. Former Deputy 

National Security Advisor James Steinberg said the only time the 

FBI gave the NSC relevant information was during the Millennium 

crisis. Clarke told us that Attorney General Reno was notified 

the NSC could not run an effective counterterrorism program 

unless it had access to FBI information. 

The Justice Department representative on Clarke's interagency 

group, the CSG, has told us, however, that to his knowledge, 

neither Clarke nor anyone else at the NSC raised any systemic 

issue of FBI information sharing as a policy issue or a matter 

to be considered by Attorney General Reno. Reno, in any case, 

initiated biweekly briefings of National Security Advisor Berger 

with FBI Director Freeh. 

Reno told us that she was very concerned about the Bureau's 

information sharing and intelligence capabilities. In 2000, she 

sent several memoranda to Director Freeh expressing these 

concerns. One memo stated "it is imperative that the FBI 

immediately develop the capacity to fully assimilate and utilize 

intelligence information currently collected and contained in 

FBI files and use that knowledge to work proactively to identify 

and protect against emerging national security threats." Reno's 

requirements included improved information sharing, improved 

counterterrorism training, a threat assessment, and a strategy 

to counter the threat. It is not clear what actions the FBI took 

in response to these directives from the attorney general. 

Terrorist financing. The FBI worked hard on terrorist 

financing investigations. The Bureau primarily utilized an 

intelligence approach. Agents in a number of field offices 

gathered intelligence on a significant number of suspected 

terrorist financing organizations. Before 9/11, those FBI 

offices had been able to gain a basic understanding of some of 

the largest and most problematic conspiracies that have since 

been identified. 

The agents understood that there was a network of extremist 

organizations operating in the United States supporting global 

Islamic jihadi movements. They did not know the degree to which 

these extremist groups were associated with al Qaeda. It was 

also unclear whether any of these groups were sending money to 

al Qaeda. 
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The FBI operated a web of informants, conducted electronic 

surveillance, and had opened investigations in a number of 

offices. Numerous offices, including New York, Chicago, Detroit, 

San Diego and Minneapolis, had significant intelligence 

investigations into groups raising money for extremists. Many of 

these groups appeared to the FBI to have some connection to 

either al Qaeda or Bin Ladin. 

But the problems in the FBI's counterterrorism program 

affected these investigations, too. The FBI was hampered by an 

inability to develop an endgame. Its agents continued to gather 

intelligence with little hope that they would be able to make a 

criminal case or otherwise disrupt the operation. Agents were 

stymied by rules regarding the distinction between intelligence 

and criminal cases, in part due to the wall then in place 

between criminal and intelligence investigations, as described 

above. 

Making a terrorist financing case was at least as difficult, 

perhaps more so, than other similarly complex international 

financial criminal investigations. The money inevitably moved 

overseas. Once that occurred, the money was much harder to 

track, and the agents were at a dead end. In addition, due to 

the FBI's inadequate information management systems, strategic 

analysis and information sharing capabilities before 9/11, the 

FBI lacked a fundamental strategic understanding of the nature 

and extent of the al Qaeda fundraising problem in the U.S. 

As a result, the FBI could not fulfill its responsibility to 

provide intelligence on domestic terrorist financing to 

policymakers. It did not contribute to national policy 

coordination on this issue. Instead, FBI agents simply kept tabs 

on the fundraisers, even as millions of dollars flowed to 

foreign Islamic extremists. 

Conclusion. From the first World Trade Center attack in 1993, 

FBI and Department of Justice leadership in Washington and New 

York became increasingly concerned about the terrorist threat 

from Islamic extremists to U.S. interests, both at home and 

abroad. Throughout the 1990s the FBI's counterterrorism efforts 

against international terrorist organizations included both 

intelligence and criminal investigations. The FBI's approach to 

investigations was case- specific, decentralized and geared 

toward prosecution. 
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Significant FBI resources were devoted to after-the-fact 

investigations of major terrorist attacks, resulting in several 

successful prosecutions.

The FBI attempted several reform efforts aimed at 

strengthening its ability to prevent such attacks, but these 

reform efforts failed to effect change organization-wide. 

On September 11, 2001, the FBI was limited in several areas 

critical to an effective counterterrorism strategy that could 

prevent attacks. Those working counterterrorism matters did so 

despite limited intelligence collection and strategic analysis 

capabilities, despite a limited capacity to share information 

both internally and externally, despite insufficient training, 

an overly complex legal regime, and despite inadequate 

resources. 

MR. KEAN: We will now hear from our first witness. Our first 

witness, the Honorable Louis J. Freeh, who served as the 

director of the Federal Bureau of Investigation from 1993 to 

2001. 

Director Freeh, we're very pleased to welcome you this 

morning. Will you please rise and raise your right hand. 

Do you swear or affirm to tell the truth, the whole truth and 

nothing but the truth? 

MR. FREEH: I do. 

MR. KEAN: Please be seated. 

Director Freeh, your prepared statement will be entered into 

the record in full. As you know, we've got an agreement that 

your statement summarized will be about 10 minutes long. And so 

please proceed. 

MR. FREEH: Thank you, Mr. Chairman, members of the 

Commission. 

Let me just begin by again expressing publicly my condolences 

to the families of the 9/11 attack and to extend my prayers and 

support for them and my wishes that this commission, as the 

joint intelligence committees before it, does not only find some 

answers but certainly recommendations for change and 

improvement, many of which have already been undertaken, so that 
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this type of awful, horrific human and personal tragedy never 

affects anyone else. 

I wanted to just make a couple of points. I certainly 

appreciate the work of the staff and the report of the executive 

director. And, maybe not addressing all the details of what has 

been a very careful review of the FBI operation certainly prior 

to September 11th and thereafter and a very good audit with 

respect to many of the programs and operations, I would like to 

talk about some larger general issues and certainly then engage 

in whatever questions you want. 

I think the point that I would like to make is that it is 

imperative, in my view, that the Commission distinguish between 

the period before September 11th and the period after September 

11th; that this is, I would respectfully suggest, a central 

question for the Commission and for the American people. And I 

think the inability to focus on that question leaves not only a 

lot of speculation but, I think, a lot of misinformation about 

some of the activities and some of the dynamics here involved. 

I guess my view is that al Qaeda declared war on the United 

States in 1996. That's when bin Ladin issued his first fatwa. 

The 1998 fatwa was much more specific. It directed his followers 

to kill Americans anywhere. That was followed by attacks against 

Americans soldiers in Yemen in 1992, which was actually the 

subject of a Southern District of New York FBI indictment 

returned in June of 1998 prior to the attacks against the 

embassies in East Africa. 

The attacks upon the American soldiers in Somalia, in Project 

Restore Hope, was an activity sponsored and directed by al Qaeda 

soldiers. That, as you know, was one of the overt acts publicly 

identified in the New York City indictment with respect to bin 

Ladin. The attacks against the embassies in 1998, acts of war 

against the United States; the attacks against our warship in 

2000, acts of war against the United States. 

I remember briefing Senator Kerrey and Senator Shelby after 

one of these attacks. It was the embassy attacks. And he asked 

me a very good question, a question I think is maybe more 

relevant today than it was then. 

And he said, "Why is the FBI over in East Africa, hundreds of 

FBI agents sifting through a crime scene, maintaining chain of 

custody, talking to people and giving them their Miranda rights, 

when this is an act of war against the United States?" 
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And my response then, as it would be now, is that absent a 

declaration of war back by the United States against al Qaeda, 

against this very competent and very dangerous terrorist 

organization, we were left with the tools that were available to 

fight terrorism and to neutralize and incapacitate not just bin 

Ladin but many of his operatives and allied organizations. 

The point there is not that anybody in the FBI or anybody in 

the United States thought that investigating these cases was the 

best response to a war that was declared against the United 

States. You could poll any FBI agent, any jury that tried and 

convicted many of the people in these cases, and they would tell 

you absolutely not. An arrest warrant -- two of them for bin 

Ladin in the Southern District of New York -- was not going to 

deter him from what happened on September 11th. 

But the point of these investigations was, in the absence of 

invading Afghanistan, in the absence of armed Predator missiles 

seeking out our enemies, in the absence of all the things that 

were appropriately done after September 11th, when the United 

States declared war back on al Qaeda, we were left with 

alternatives which were better than no alternatives. And as I 

said in my statement, sometimes they worked. 

And the investigations were not investigations that dealt 

with individuals. When the FBI investigated La Cosa Nostra, it 

wasn't investigating a particular person or group of people; it 

was investigating the organization and the enterprise. The 

purpose there was to get as much information as possible to 

incapacitate the leadership and dissolve the organization. The 

Watergate investigation would be the same example of that. These 

investigations were not cases, they were initiatives that were 

designed to gather information. 

So before September 11th, most of the information that was 

residing in the United States government with respect to al 

Qaeda came from FBI investigations, not from intelligence 

operations, not from collection. It came from the cooperating 

witnesses that we found in 1993 after the World Trade bombing in 

February, the FBI conducting an investigation, but an 

investigation that went to the identification of the people who 

might have been involved in supporting that attack, led to, if 

you recall, the prevention -- I stress that word, the prevention 

-- of a second major terrorist attack against the United States 

in New York City, which was called the "Day of Terror." 
17

And the organization was going to blow up tunnels and bridges 

and the United Nations and federal office buildings, killing 

potentially thousands and thousands of Americans. It was the 

investigation of the World Trade tower that prevented that and 

also gave us an arrest warrant for one Ramzi Yousef. 

Ramzi Yousef, related to Sheikh Khalid Mohamed (sic), one of 

the architects of the September 11th attack. He was found in 

Pakistan, staying in an al Qaeda guest house, by FBI agents who 

had an arrest warrant, and without that arrest warrant he would 

never have been brought back to the United States. Why was it 

important to have an arrest warrant? Because incapacitating him 

would prevent him from further attacks against the United 

States. As you know, in 1995 he and others -- Sheikh Khalid 

Mohamed (sic) being one of them -- were planning to blow up 12 

U.S. airliners over the Pacific Ocean, killing hundreds of 

Americans. That was aborted due to a series of events, but 

precisely the FBI criminal investigation served to prevent that 

from happening. 

My point is that these investigations are projects that seek 

to gather maximum amount of information so the organization can 

be stopped from committing future acts of terrorism. It was 

never our notion in the FBI that criminal prosecutions of 

terrorists and investigations of their organizations was a 

substitute for military action, for foreign policy action, for 

the United States doing what it did on September 11th: declaring 

war on an enemy that had declared war on us many years ago. 

The point of it is that these investigations, as they 

existed, prevented acts of terrorism with very limited 

resources. The FBI, as you know, before September 11th had 

three-and-a-half percent of the federal government's 

antiterrorism budget. And it's no news to anybody that for many, 

many years, as your executive director recounted, the resource 

issue and the legal authority issue certainly limited what we 

were able to do before September 11th. 

In the budget years 2000, 2001, 2002, we asked for 1,895 

people -- agents, linguists, analysts. We got a total of 76 

people during that period. That's not to criticize the Congress, 

it's not to criticize the Department of Justice; it is to focus 

on the fact that that was not a national priority. To repeat 

what we saw in the 2000 Presidential election, terrorism was not 

discussed; this was not an issue that the candidates talked 

about, that the American people talked about during that period, 

and this was right after the attack on the U.S.S. Cole. 
18

For many, many years, a lack of these resources, and maybe 

more importantly, a lack of legal authority, prevented us from 

doing what was easily done after September 11th. The PATRIOT

Act, the November 18, 2002 decision by the Court of Review, 

which threw out a 20-year interpretation of the FISA statute; 

the court said to the judges, to the Department of Justice, to 

the FBI, to the intelligence community: You've been misreading 

the statute for 20 years. Not only does the PATRIOT Act provide 

for this, but the actual statute provides for that. So this wall 

that had been erected was a self-erected wall by the United 

States government, confirmed by interpretation by the FISA 

Court, but when challenged for the first time in 20 years, was 

found by the Court of Review to be inconsistent with the statute 

as well as inconsistent with the Constitution. 

All of these things being said, the point I guess I want to 

make to you this morning, and which I tried to make in my 

statement, is that we had a very effective program with respect 

to counterterrorism before September 11th, given the resources, 

in my view, and given the authorities that we had. Bin Ladin was 

indicted in June of 1998. He was indicted again after the 

African bombings. He was put on our top 10 list. George Tenet 

and I reviewed plans to have him arrested and taken into custody 

in Afghanistan and brought back to the United States. I went 

over to see then-Chief Executive Musharraf in 2002 and made the 

case for him that this person be thrown out of Afghanistan; that 

he help us take him into custody so we could bring him back to 

the United States. All of the other things that were being done 

were being done in a limited framework given, again, lack of 

resources, and maybe more importantly, the legal authorities 

that we had to live with. 

MR. KEAN: If you could wrap up now, your time's up. 

MR. FREEH: Thank you, Mr. Chairman. 

The final point I think I want to make then is that we can 

change the law, we can pass new statutes, we can add billions of 

dollars to the fight. We need to keep in perspective, however, 

what was the reality before September 11th; what was the reality 

thereafter. And at the end of the day, the FBI, as a part of the 

Department of Justice, has to obey the law. And whatever that 

law is, it's one that protects us. It protects our constitution, 

it also protects our people. And that law can change. But I 

think we have to keep in mind that when that changes, we can't 

judge what happened in the past by different standards. 
19

Thank you. 

MR. KEAN: Thank you, sir. 

Commissioner Fielding? 

MR. FIELDING: Morning, Mr. Director. Thank you very much for 

being here today and for all the cooperation you've provided to 

the Commission and its staff in closed sections heretofore and 

for your very fulsome statement that you gave us. And, also, 

thank you on behalf of the whole commission for your public 

service, both in the executive and judicial branch. 

I am sure it's no surprise to you or anybody here that 

there's a lot of interest in today's hearings and there's a lot 

of interest simply because on September 11th we were totally 

beaten. We were beaten and all our systems failed. Our systems 

to stop hijackings failed. Our intelligence -- domestic and 

foreign apparatus -- failed. We had 19 people who were able to -

- some of whom were known by the CIA to be terrorists -- entered

our country, got visas, were living under their own names in 

this country, took flight lessons, beat the security screening 

with knives to get into the aircraft, and turn four aircraft 

into missiles. And they had to have -- it was interesting, they 

had to have a 100 percent success in order to do this and they 

did. 

So we've now found in our discovery that there have been some 

clues; some dots, as we say, might have been connected were not. 

We're not passing judgment on that at this point, but what we're 

trying to determine here is how this intelligence failure 

occurred so that we can deny it from occurring again, if at all 

possible. And quite frankly, we're also trying to determine 

whether the FBI should continue to have its counterterrorism 

responsibility, whether it's capable of carrying out the new 

mission of counterterrorism and the enhanced mission and the 

enhanced responsibilities. So we appreciate your being here. 

You became the director in September of '93 and had a long 

service through June of '01, so you're clearly aware of the 

terrorists targeting U.S. interests in the '90s. 

It was often said that because you're a former field agent 

yourself that you had little time for headquarters, and that you 

created or enhanced what has been described to us as the 

"culture of the field." And during your tenure counterterrorism 

investigations were run out of the field, as we understand it. 
20

And the New York field office was the office of origin for al 

Qaeda, and therefore, our -- as the staff statement said, our 

expertise for a large part was there. Now, also in 1994 when you 

came on, you reassigned over 600 headquarters supervisory 

administrative agencies out into the field, ostensibly to make 

the FBI more efficient and to put more FBI agents on the street. 

Now, some have looked at this approach -- and I want to read 

a quote. It says, "The FBI's policy to decentralize 

investigations was inefficient for counterterrorism operations, 

especially against international terrorist targets," and that's 

from the report of the House Permanent Select Committee on 

Intelligence that analyzed this approach. So my first question 

to you is -- you obviously made this decision. How -- to you, 

what were the strengths of this approach, of using the office of 

the origin concept as opposed to the FBI's now current, more 

centralized approach to counterterrorism? 

MR. FREEH: Well, you've asked a number of questions. Let me 

see if I can respond to some of them. 

With respect to the 600 agents being assigned out of 

headquarters, that wasn't because I believed that we shouldn't 

have them in headquarters but should have them in the field; it 

was because for 22 months the FBI had a hiring freeze. So we 

were having offices around the country, literally the RA offices 

-- the resident agencies -- becoming vacant because there were 

no agents being hired. Twenty- two months, not one FBI agent was 

hired. So my reassignments in 1994 were not to decentralize the 

FBI; it was to put agents in spaces where they had to be put 

with respect to that. 

Al Qaeda. In terms of the cases, as you call them correctly, 

but also the investigation of al Qaeda was centralized in New 

York City. That's where the primary office and the three squads 

that were established ultimately in New York City dealt with the 

Cole bombing, the East Africa bombing as well as the al Qaeda 

organization in general. That doesn't mean that we didn't 

organize and centralize and direct those investigations from 

headquarters. 

We set up, as your executive director mentioned, in 1999 a 

Counterterrorism Division. 

The purpose of the Counterterrorism Division was to control 

and help support a national program where cases, although they 

have to be worked in the field -- that's where the U.S. 
21

Attorneys are -- they also were directed and supervised by 

headquarters. 

It was interesting that when I submitted the proposal for the 

Counterterrorism Division, with the full support of the attorney 

general, Janet Reno, it took nine months for the Office of 

Management and Budget and the Congress to approve that. Which 

again goes to my point before about the priorities with respect 

to getting things done. 

We had an al Qaeda/Osama bin Ladin unit set up at 

headquarters. In our SIOC operation we had 24 by 7 coverage of 

those matters and those cases. So the cases were being worked in 

New York City. I don't know where else they could have been 

worked. But the coordination between headquarters and the field, 

in my view, was very, very good. 

Now, I got involved very directly in many of those 

operations. For instance, I went to Pakistan to ask Mr. 

Musharraf to help us arrest Bin Ladin. I also asked him for 

witnesses, which he ultimately agreed to send, one to New York 

City for the trial. I went to East Africa and negotiated the 

return of Odeh and some of the other hijackers to be prosecuted 

in New York, where they were convicted. So there was a lot of 

headquarters involvement; in fact, there was huge headquarters 

involvement in the New York cases. The fact that they were in 

the field was just the reality of that's where cases are, and 

that's where grand juries and prosecutors and courts are. 

But the point is that that group of New York City agents were 

functioning not just as case agents, they were the intelligence, 

they were the analysis, they were the whole embodied knowledge 

of the United States government at that time with respect to al 

Qaeda and its principals. And their job was to disable the 

organization, eliminate the leadership of -- at that point by 

arrest or custody. And many efforts, heroic efforts on their 

part were extended in that regard. 

MR. FIELDING: Okay. Then if the -- is it your testimony that 

the al Qaeda cases, if you will, that were being run out of the 

New York office were really being directed out of headquarters? 

MR. FREEH: Yes, sir. 

MR. FIELDING: Then help me a little. How under that structure 

would the rest of the field offices really have the same sense 

of urgency, understanding or know-how, if you will, to 
22

contribute to the antiterrorist -- the counterterrorism effort? 

For instance, use as the example, the infamous or famous 

"Phoenix memo" that never seems to get where it should get. 

Could you comment on that? 

MR. FREEH: On the Phoenix memo or the fact that we had the 

expertise in New York City? 

MR. FIELDING: Both. Both. I'm using that as an example. Isn't 

this decentralization inhibit the interplay between the offices, 

so to speak? 

MR. FREEH: Well again, I guess I don't agree with the term 

"decentralization." I mean, the cases had to be worked where 

they were worked. We had a body of expertise with respect to al 

Qaeda and Bin Ladin resident in New York. We had an equal and 

ample, in my view, body of expertise at our headquarters with 

Dale Watson and Debbie Stafford and Mike Rolince -- all the 

people that your staff has spent many, many hours with over the 

last few months. So, you know, we didn't only have the expertise 

in New York. And Dale's job and Mike Rolince's job and the 

counterterrorism section, before it was the Counterterrorism 

Division's job, was to ensure that, first of all, expertise was 

available to support cases in smaller offices that perhaps 

didn't have that kind of experience, would not have had that 

kind of experience. 

The purpose of, you know, MAXCAP 05, the purpose of seminars, 

the purpose of SAC conferences was to disseminate all that 

information and make sure that the field not only was aware of 

those investigations, but if they had matters in their own 

divisions -- and there were 70 cases around the FBI in the 

summer of 2001, not on al Qaeda members or Bin Ladin supporters, 

but on fundamentalist jihadists who were of great interest to 

the Bureau because of their potential, as we saw in East Africa 

and other cases, to be co-opted and enlisted into operations --

so the decentralization I don't think is something that I would 

characterize it as. 

With respect to the Phoenix memo, which is your second 

question, you know, my understanding of that memo, mostly what 

I've read in the newspapers, is that it was sent to 

headquarters; it was not decentralized in the sense that it 

never made it to headquarters. It was looked at there. It was 

analyzed. People took what they thought was the appropriate 

action at the time. 
23

I know, as a aftermath of the information contained in that 

memo, everyone was interviewed -- the people who were identified 

in the memo. All the leads were run out after the fact. And 

there was nothing about the information contained in that memo, 

as far as I've read, or as I understand it, that would have led 

you to September 11th. 

MR. FIELDING: Well, then do you disagree -- well, let me ask 

it another way. The PENTTBOMB investigation is now being run out 

of headquarters. Would you disagree with the way that Director 

Mueller is running that? 

MR. FREEH: No. Again, I think, after September 11th, there 

had to be a completely new restructuring of how counterterrorism 

cases and operations were going to be conducted. So I would not 

have any disagreement with that. 

And by the way, if you were going to do a criminal 

prosecution there, not that that would be appropriate, you would 

do it in the Eastern District of Virginia. So it wouldn't make 

any sense for agents in New York City to be working on it, if 

you were to do a criminal case. 

MR. FIELDING: So you think that post-9/11 that's the better 

way to run counterterrorism cases? 

MR. FREEH: I don't think you can run counterterrorism cases 

out of headquarters. That's not my experience or my view. I 

think you have to coordinate them out of headquarters. The 

liaison throughout the government, the ability to share 

intelligence, the overseas connections that are necessary -- you 

can't run it without headquarters, but you can't prepare a 

criminal case for a field presentation in a U.S. district court 

in headquarters. That's just my own view. 

MR. FIELDING: Let me switch gears for a second. In September 

of 1999, the GAO issued a report that recommended that the FBI 

develop a national-level terrorist threat and risk assessment, 

so it could be used how -- to determine how to allocate 

resources and budget in dealing with domestic threats, plus the 

-- analyzing the likelihood of such a threat, and to identify 

any potential intelligence gaps, I believe, was part of the 

charter. 

And it was my understanding that the department and you 

agreed to do that. And that's September -- or the end of '99, 

and that wasn't completed until January of 2003. 
24

And when we were talking to people that were involved in 

that, a senior CIA official that was detailed to the FBI after 

9/11 told the Commission that the assessment was completed 

actually by CIA analysts that had been detailed to the FBI, 

since the FBI analysts were not capable of producing such a 

product. 

Now, I'd like your comment on that and even the deeper 

question of was the FBI unwilling to do an analysis or was it 

unable to do an analysis from '99 at least until you left? 

MR. FREEH: Well, I don't think it was incapable of doing 

that. In fact, there were analyses that were made with respect 

to assessments which were done in the context of the 

Counterterrorism Division, which was set up at about the same 

time. 

Did we have a deficiency with respect to analytical 

capability? Absolutely. I talked about that at appropriation 

hearings over many years. Most of the non-agent resources in our 

three-year request for 1,895 people were analysts. They were 

people who could perform strategic, as opposed to tactical, 

analysis for us and give us the type of strategy plans and 

disruption plans that we began to see actually in the spring and 

summer of 2001 in the FBI with respect to al Qaeda. But that 

capability was not there when I was director. You know, we're in 

the process now of hiring 900 analysts, but that's 2004. It 

doesn't cover the gaps over many, many years, particularly the 

years that you cite. 

MR. FIELDING: But you would agree that counterterrorism needs 

that as a component of its total effort, would you not? 

MR. FREEH: Absolutely. It needs linguists, which were also, 

you know, requested year after year. We asked for the authority 

to hire Arabic and Farsi speakers at a higher rate than the GS 

scale provided for in New York City. You can't hire an Arabic or 

Farsi speaker for a GS-6 salary, which is what we were relegated 

to. We did get a brief experiment with respect to a Title 5 

exemption, but not what is now available and funded at least to 

the point where you can make an initiative. 

MR. FIELDING: Okay. Now, the last -- oh, I guess that is my 

last one. I'm sorry, I see my time is up. Thank you, Mr. 

Director.

MR. FREEH: Yeah
25

MR. KEAN: Commissioner Ben-Veniste. 

MR. BEN-VENISTE: Good morning, Director Freeh. 

MR. FREEH: Good morning. 

MR. BEN-VENISTE: As you know, the purpose of this commission 

may be divided into two broad categories. First, we are charged 

with providing a full accounting of the 9/11 catastrophe, a 

challenging investigative responsibility. Second, we're asked to 

make recommendations in a wide variety of areas, all of which 

with the common goal of improving the security of our nation. 

We should be reminded that the ability to have such a 

commission to operate in part through public hearings and to 

ultimately deliver a report to the President of the United

States, to the United States Congress and to the American 

people, a report on our findings and recommendations, is a 

remarkable testimonial to the strength and durability of our 

democracy. Few countries in the world would tolerate, much less 

welcome, such an open and public process. 

Director Freeh, you have served in two of the three branches 

of government. You were an FBI agent; an assistant U.S. attorney 

in the Southern District of New York, an office for which I have 

great affection, as you know, and continuing admiration. Indeed, 

during my service as an assistant United States attorney, I 

worked closely with many FBI agents who I regarded as among the 

most dedicated and patriotic Americans I've ever met. Indeed, 

some of them are close friends today. You have served as a 

federal district court judge in the Southern District of New 

York, appointed by President Reagan, and then you were appointed 

by President Clinton to be FBI director. Your experience and 

observations will be an important source of information for this 

commission. 

You have reemphasized this morning the fact that the New York 

office of the FBI, which was led by James Kallstrom and then 

Barry Mawn and John O'Neill, particularly focused on the alQaeda terrorist threat. In fact, John O'Neill perished in the 

attack on the World Trade Center on September 11, 2001, at the 

hands of cowards who murdered civilian men, women and children -

- people who John O'Neill had hunted with the determination that 

sometimes bordered on an obsession. 

Indeed, in January 2001 O'Neill's concerns stimulated an 

interagency group white paper, urging greater protection of 
26

federal buildings in Lower Manhattan. And that white paper noted 

that Osama Bin Ladin, his al Qaeda organization and affiliated 

extremist groups currently pose a clear and immediate threat to 

U.S. interests. 

Do you recall discussions with John O'Neill about the threats 

from al Qaeda or others that might occur within the United 

States? 

MR. FREEH: Yes, I do, and particularly in that time frame. If 

you recall, the trial was actually starting in January of 2001. 

It went through May. This was the trial of the four subjects in 

custody for the East African bombings. So the New York office, 

as well as headquarters and myself, were intensely concerned 

about the security for that trial. And if any of you saw the 

courthouse during the period of that trial, there were cement 

trucks, streets closed because we were focused on a domestic 

attack in the United States by the co- conspirator in that case, 

indicted but a fugitive, Osama Bin Ladin. 

MR. BEN-VENISTE: Let me ask you this. You have talked this 

morning and in your submitted statement and previously about 

your efforts to increase the counterterrorism budget, efforts 

that were not accepted by the Congress of the United States in 

allocating more funds for you. But can you tell us whether it 

was possible within the FBI structure to reallocate resources 

within a particular field office or in general, perhaps using as 

an example James Kallstrom, the former head of the New York 

office of the FBI, who unilaterally shifted resources to 

counterterrorism from other areas? 

I believe you have told us in staff meetings that Jim 

Kallstrom had half of his criminal division working on 

counterterrorism, pulling agents away from such traditional 

investigative efforts as bank robberies, drug investigations, 

the type of investigations which can overlap with other federal 

agencies or with state and local operations. 

Did Kallstrom's sort of entrepreneurial decision on his own, 

recognizing the terrorist threat, to make those reallocations 

trouble you? 

MR. FREEH: Well, no, since I concurred in it. I wouldn't call 

it an entrepreneurial decision at all. I mean, when we needed to 

put 400 FBI agents in East Africa in August of 1998, we put them 

there. Now, they weren't allocated in our congressional funding 

stream as counterterrorism agents, but we sent them there 
27

because we needed them there. For years in the New York office, 

we -- the term is "overburned" the number of agents working 

counterterrorism cases. 

Now, there were only three squads that were full-time 

assigned to Bin Ladin cases and al Qaeda investigations, but 

when we had a trial or we had an emergency, like we were 

preparing for the 50th anniversary of the U.N. or the NATO 

meeting or the pope was coming to New York, we would, of course, 

allocate hundreds and hundreds of agents who were not authorized 

budgetarily to perform counterterrorism assignments to that job. 

So that was something we did continuously. 

There was never a case, Mr. Ben-Veniste, anywhere in the 

Bureau that I was aware of where we could not assign agents in 

an emergency or in the threat of danger to help prevent that. 

But the reality is, in terms of our congressional budget, they 

were not then authorized to be working the matters they were 

working. 

MR. BEN-VENISTE: Well, given the fact that you concurred and 

supported Jimmy Kallstrom's efforts in New York City, and given 

the fact that there has been criticism about the FBI's inability 

to reallocate resources toward the growing threat of terrorism 

and reallocate those resources, as I say, away from more 

traditional FBI jurisdictional areas which could be covered by 

other federal and state agencies, how do you answer that 

criticism? 

MR. FREEH: Well, I think I would address it by saying two 

things. One, you know, the positions that are authorized by the 

Congress and audited by their committees as well as GAO have to 

be allocated to the program areas where they're funded to. 

That's number one. Now, from time-to-time, as in the New York 

case, we would ask the congressional committees for temporary 

reallocations. We would advise them as to what we were doing. My 

answer to getting counterterrorism resources to fight terrorism 

was to ask for them, and to ask for them in addition to what we 

already had. 

MR. BEN-VENISTE: Were you ever reprimanded for reallocating 

on your own, either on the basis of emergency or on a more 

generalized basis, resources to counterterrorism as a result of 

congressional oversight? 

MR. FREEH: No, but I think that's because we were doing it on 

an emergency basis and on a temporary basis. 
28

If we had taken a thousand agents from our criminal programs 

and assigned them full-time to counterterrorism matters, I don't 

believe we could have done that. I don't believe the committees 

would have permitted it at the time. 

MR. BEN-VENISTE: But you did not try that. You did not try --

MR. FREEH: No, I did not try that, because that's not the way 

resources are allocated. 

MR. BEN-VENISTE: Let me turn to the subject of the state of 

the intelligence community's knowledge regarding the potential 

for the use of planes, airplanes, as weapons, a subject of 

obvious interest to this commission. Did the subject of planes 

as weapons come up in planning for security of the Olympics held 

in Atlanta in 1996? 

MR. FREEH: Yes. I believe it came up in a series of these, as 

we call them, special events. These were intergovernmental 

planning strategy sessions and operations. And I think in the 

years 2000, 2001, even going back maybe to the 2000 (sic) 

Olympics, that was always one of the considerations in the 

planning, and resources were actually designated to deal with 

that particular threat. 

MR. BEN-VENISTE: So it was well-known in the intelligence 

community that one of the potential areas or devices to be used 

by terrorists, which they had discussed, according to our 

intelligence information, was the use of airplanes, either 

packed with explosives or otherwise, in suicide missions. 

MR. FREEH: That was part of the planning for those events. 

That's correct. 

MR. BEN-VENISTE: Now did that come up -- the same subject 

come up again? I know you carried on from the Clinton 

administration through six months, more or less, of the Bush 

administration. Did that subject come up again in the planning 

for the G-8 summit in Italy? 

MR. FREEH: I don't recall that it did, but I would not have 

been involved in that planning. The FBI would not have been 

involved in that particular planning. 

MR. BEN-VENISTE: We were advised that there was a cap or a 

no- fly zone imposed over first Naples, in the pre-planning 

session, and then Genoa, during the meeting of the eight heads 
29

of state, and that subsequently it was disclosed that President 

Mubarak of Egypt had warned of a potential suicide flight using 

explosive-packed airplanes to fly into the summit meeting and to 

--

MR. FREEH: Yeah. I don't dispute that. But that planning 

would have done -- be done by the Secret Service, probably the 

Department of Defense. We would not have been involved in that 

event outside the United States, in terms of the special 

planning, although we probably detailed some people there. 

MR. BEN-VENISTE: Let me ask you this. To your knowledge, 

coming back to the United States, was the intelligence 

information accumulated by the year 2001 regarding various 

plots, real or otherwise, to crash planes using suicide pilots 

integrated into any air defense plan for protecting the homeland 

and particularly our nation's capital? 

MR. FREEH: I'm not aware of such a plan. 

MR. BEN-VENISTE: Can you explain why it was, given the fact 

that we knew this information and given the fact that, as we 

know now, our air defense system on 9/11 was looking outward, in 

a Cold War posture, rather than inward, in a protective posture, 

that we didn't have such a plan? Was that a failure of the 

Clinton administration, was that a failure of the Bush 

administration, given all of the information that we had 

accumulated at that time? 

MR. FREEH: Well, I mean, I don't know that I would 

characterize it as a failure by either administration. 

I know, you know, by that time there were air defense systems 

with respect to the White House. There were air defense systems 

that the military command in Washington, D.C. area, you know, 

had incorporated. I don't think there were probably -- at least, 

I never was aware of a plan that contemplated commercial 

airliners being used as weapons after a hijacking. I don't think 

that was integrated into any plan. But with respect to air 

defense issues and that threat, it was clearly known and it was 

incorporated, as I mentioned, into standard special events 

planning. 

MR. BEN-VENISTE: Into special events, but never into the 

actual defense posture for the homeland protection of the United 

States. 
30

Let me ask you a final question with respect to the 

Millennium threat. The FBI and the CIA have been criticized for 

being unwilling to work cooperatively together, yet it appears 

during the period of heightened alert prior to the Millennium 

the FBI and CIA worked closely together and had several notable

successes as the result thereof. Could you explain how that 

operation worked and whether you reported to the National 

Security Council of the United States? 

MR. FREEH: Well, with respect to the Millennium planning, I 

reported of course to the attorney general. The attorney general 

and I worked very closely in concert with the National Security 

Council, with the director of Central Intelligence, the CIA, 

military components, civilian components. This was an integrated 

and long-term planning operation with respect to Millennium 

threats, which were not only issues concerning technology 

exploitation but also the occasion of the Millennium as a 

terrorism attack. 

But your more important question, I think, is the CIA-FBI 

cooperation. I don't think it was unique to the Millennium 

planning. My experience in eight years there is that there was 

extremely good cooperation between the FBI and the CIA, and that 

goes back to matters such as the Cole bombing, the East African 

embassy bombings cases. The Alex Station, which you know from 

your staff was set up in 1997, the CIA and the FBI together in a 

station dedicated to al Qaeda investigations and disruption 

activities overseas. FBI agents would regularly accompany CIA 

officers overseas to exploit al Qaeda cells and disrupt them. I 

think that cooperation, in my view, was a very outstanding one 

for many years. 

MR. BEN-VENISTE: Thank you, sir. 

MR. KEAN: Commissioner Gorelick. 

MS. GORELICK: Thank you, Mr. Chairman. 

I've asked for the microphone only to say that I will not be 

questioning Director Freeh or Attorney General Reno. Under our 

commission policy, several commissioners have recused themselves 

from considering various issues that they worked on or elements 

of the government that they've worked with at one time or 

another. While I'm recused only from review of actions during my 

tenure at the Department of Justice, which ended in March of 

1997, because I worked closely with Director Freeh and with 
31

Attorney General Reno I've decided not to participate in this 

questioning at all. 

As my colleagues know, the vast preponderance of our work, 

including with regard to the Department of Justice, focuses on 

the period of 1998 forward, and I have been and will continue to 

be a full participant in that work. 

So all I will say today is thank you for your testimony 

today, Director Freeh. 

MR. FREEH: Thank you. 

MR. KEAN: Thank you. I've got a couple of questions. First, 

I'm interested in your communications with the White House. When 

you had a serious problem where you thought there were threats, 

did you go directly to the President or was there another 

mechanism you used to communicate with the White House, either 

in the Clinton administration or the Bush administration -- or 

both, I guess. 

MR. FREEH: Well, I mean, my procedures would normally be to 

communicate first with the attorney general. On many occasions 

after that communication we would go to the White House. If it 

was a national security issue we would certainly see the 

national security advisor. In the last year that Janet Reno and 

I served together, we actually had a routine meeting with the 

national security advisor, I'd say probably every two or three 

weeks. We had another one with Secretary Albright probably once 

a month. And the purpose of those meetings was to discuss not 

just counterintelligence and counterterrorism matters, but even 

other Department of Justice issues that had national security 

implications. 

On some occasions I would go directly to the national 

security advisor. I did not have an experience in either

administration of going directly to the President on a matter. 

MR. KEAN: Okay. One of the questions that may be one of the 

most important that our commission is charged with is looking at 

the intelligence agencies and seeing whether any changes ought 

to be made. 

Now, I read our staff statement as an indictment of the FBI 

for over a long period of time. You know, when I read things 

like that your -- 66 percent of your analysts weren't qualified, 

that you didn't have the translators necessary to do the job, 
32

that you had FISA difficulties, that you had all the information 

on the fundraising but you couldn't find a way to use it 

properly to stop terrorism -- and that's without counting, of 

course, the things that were going on at the same time -- Ruby 

Ridge or Waco or the Wen Ho Lee case or the Hanssen case or the 

lost laptops and firearms and all the rest. 

The present director, your successor, has a whole series of 

reforms that he is trying to put to make the agency work better. 

You tried reforms; you tried very hard to reform the agency. 

According to our staff report, those reforms failed. 

I guess my question to you is, looking at this director's 

efforts to reform the agency, can those reforms work or should 

there be some more fundamental changes to the agency in the way 

we get our intelligence? 

MR. FREEH: Well, first of all, I take exception to your 

comment that your staff report is an indictment of the FBI. I 

think your staff report evidences some very good work and some 

very diligent interviews and a very technical, almost auditing 

analysis of some of the programs. I think the centerpiece of 

your executive director's report, as I heard it, came down to 

resources and legal authorities. So, I would ask that you 

balance what you call an indictment, which I don't agree with at 

all, with the two primary findings of your staff -- one is that 

there was a lack of resources and, two, there were legal 

impediments. 

With respect to your question, I certainly support and 

applaud the director's efforts -- the PATRIOT Act, the court of 

review. A couple billion dollars is certainly a big help when 

we're talking about changes. 

With respect to the jurisdiction of the FBI, I do not believe 

that we should establish a separate domestic intelligence agency 

with respect to counterterrorism. I think that would be a huge 

mistake for the country for a number of reasons. One, I don't 

think in the United States we will tolerate very well what in 

effect is a secret -- a state secret police, even with all of 

the protections and the constitutional entitlements that we 

would subscribe it with. Americans, I don't think, like secret 

police and you would, in effect, be establishing a secret 

police. Secondly, if you look at the models around the world 

where this has been tried, it hasn't worked very well, in my 

opinion. 
33

The other thing, it would take a long time to integrate. If 

the Homeland Security Department and 170,000 people to be 

integrated is going to take a couple of years, standing up a 

brand new domestic intelligence agency would take a decade, and 

we would lose very precious time at a very dangerous time for 

the United States. 

If you look at some of the analyses of MI5 operations -- and 

you can look at the Bishopsgate bombing, you can look at the 

Dockland bombing, the Matroyan (sp) case -- I'm sure your staff 

has looked at that -- it's been found to be not very effective. 

In fact, one of the studies that I know your staff has looked 

at, in the United Kingdom -- that looked at this, actually said 

the FBI was the preferred model because it breaks down the 

barriers between enforcement and intelligence. 

A lot of the good work of this commission has been to 

identify the barriers that existed, and still exist, between 

intelligence and law enforcement. Standing up a separate 

intelligence agency will just increase those barriers. And if 

you thought the wall was a big one, that's a fortress, in my 

view, and will make for a very ineffective counterterrorism 

program, and I think expose the country to dangers. 

So I think we ought to have the Department of Justice 

supervised by the attorney general; FBI agents who are schooled 

in the constitution, who have a transparent operation with 

respect to oversight by courts, as well as by Congress. Give 

them the tools, give them the legal authority, give them the 

budget, and they'll do this job very well. 

It's not very different from looking at organized crime, from 

looking at counterintelligence, which, in my view, the Bureau 

has done exceptionally well for decades. The difficulty with the 

wall was that the wall that was set up in Janet Reno's 

guidelines of July 19th were completely appropriate with respect 

to counterintelligence cases because counterintelligence cases 

happen in two dynamics. One, there is an investigation, and then 

there's either an indictment or an expulsion. 

Counterterrorism cases are completely different. Because of 

the threat, there's always an ongoing need to act and to use the 

intelligence to prevent attacks from taking place. So the wall 

is not an appropriate one with respect to counterterrorism, and 

that's been repaired both by the PATRIOT Act and the Court of 

Review. 
34

MR. KEAN: Thank you. 

Senator Kerrey. 

MR. KERREY: Thank you very much, Mr. Chairman. 

Director Freeh, I'll do whatever I can here to make sure I 

don't call you "Director Clarke" as I ask you these questions. 

(Laughter.) 

But first of all, do you think it was a mistake not to --

talking about Khobar now, starting at Khobar in '96, not to have 

you report directly to the National Security Council and the 

President on what was going on in that investigation? 

MR. FREEH: Well, I did report through the attorney general 

and directly to the national security advisor. Are you talking 

about Khobar? 

MR. KERREY: Right. I mean, Dick Clarke and Mr. Steinberg, the 

deputy at the National Security Council, said that there was 

never anything -- never any written reports sent by the FBI to 

the NSC. Is that not true? 

MR. FREEH: Well, if we're talking about the Khobar case, you 

know --

MR. KERREY: Well actually, I begin with Khobar, but all the 

way through this time period, it seems to me it was a mistake 

not to have you report directly on what you were learning to the 

National Security Council or to the President to let him --

because it -- since it was a domestic agency going over to 

investigate, as I've considered it, an act of war against a U.S. 

military installation in Saudi Arabia, it seemed to me that 

there should have been a reporting right back to the National 

Security Council what was going on. 

MR. FREEH: But I guess what I'm saying is there was. I mean, 

Janet Reno and myself, together on a very, very regular basis; 

myself individually on numerous occasions directly with Sandy 

Berger, that's all we talked about was the Khobar case. 

MR. KERREY: In an otherwise I thought exceptional staff 

report, the staff I think miscorrectly describes the seven cases 

that you were involved with, saying that most of those were 

overseas. In truth, three of them were domestic and four of them 

were overseas; World Trade Center number one, Landmarks plot 
35

number one, the Millennium, and indeed, if you include the 

threats against the city of New York during the 2001 trial, 

there were four domestic attacks and/or efforts. 

Did the FBI ever produce an evaluation of the threat to the 

homeland during this period to the President? Or was there one 

requested of you? 

MR. FREEH: There was none requested, that I'm aware of. I 

don't think we ever furnished a national threat report to the 

President with respect to homeland security. 

MR. KERREY: I mean, of all the facts in this whole process 

that have just caused scales to fall from my eyes was listening 

to Betty Ong, flight attendant on Flight 11, talk to the ground 

and hear the ground surprised by a hijacking. I mean, not only 

were we not at a high state of alert in our airports, we were at 

ease. We stacked arms. I mean, we weren't prepared at all. And 

it's baffling to me why some alert wasn't given to the airlines 

to alter their preparedness and to go to a much higher state of 

alert. It seems to me that a lot of things would have changed if 

that would have happened. And I would respectfully disagree with 

your assessment of the Williams memo coming out of Phoenix, 

because I think had it gotten into the works up to the highest 

possible level, at the very least 19 guys wouldn't have got on 

to these airplanes with room to spare. 

MR. FREEH: Well, Senator, I served on the Gore Commission, as 

your staff may know. And, you know, I thought the leadership, 

first of all, by the Vice President there was outstanding. I 

think the recommendations were outstanding. We spent many, many 

months writing detailed recommendations that asked for passenger 

screening, asked for many, many things which were never 

implemented. 

The whole purpose and the conclusions of that report, if you 

read it, was that the airline industry and operations were 

vulnerable at multi points with respect to hijackings and 

terrorist attack. So I agree with you, there was no --

MR. KERREY: But, I mean, you said that, you know, we couldn't 

have had a declaration of war because public opinion wasn't 

there. I, by the way, disagree with that. 

Public opinion wasn't on the side of the Bosnian war or the 

Iraq war in the beginning either, and the President made a 

determination in both cases to come to the American people and 
36

say there's a crisis. But even absent a declaration of war, why 

did we let their soldiers into the United States? Because that's 

what al Qaeda men were. They were soldiers. They were part of an 

Islamic army called the jihad to come into the United States. 

Why did we let them in the United States? Why did we have -- why 

didn't the President -- why didn't President Clinton and/or 

President Bush issue an order to change the FISA procedures and 

other orders, to INS, et cetera, to make sure that their solders 

couldn't get in America? Why did we let them in? 

MR. FREEH: Well, again, I think part of my answer is that we 

weren't fighting a real war. We hadn't declared war on these 

enemies in the manner that you suggest that would have prevented 

entry had we taken war measures and put the country and its 

intelligence and law enforcement agencies on a war footing. The 

Joint Intelligence Committee in one of their reports -- I think 

I excerpted the conclusion in my statement -- said that neither 

administration put its intelligence agencies or law enforcement 

agencies on a war footing. A war footing means we seal borders A 

war footing means we detain people that we're suspicious of. A 

war footing means that we have statutes like the PATRIOT Act, 

although with time-et provisions give us new powers. We weren't 

doing that. 

Now, whether there was the political will for it or not, I 

guess we could debate that. But the fact of the matter is we 

didn't do it. And we were using grand jury subpoenas and arrest 

warrants to fight an enemy that was using missiles and suicide 

boats to attack our warships. 

MR. KEAN: Commissioner Thompson. 

MR. THOMPSON: I want to explore in a little more detail one 

of the assumptions of Commissioner Ben-Veniste's questions. In 

looking at the Olympics, you had a defined event in a defined 

place over a defined period of time, defined airspace above the 

Olympic facilities. And so I presume that law enforcement 

planning to prevent any interruption or interdiction of the 

Olympics would have imagined any kind of possibility of 

intrusion of bomb, missile, plane, whatever, into that space. Is 

that correct? 

MR. FREEH: That's correct. 

MR. THOMPSON: And though you say the FBI was not involved 

with the planning of the G-8 summit in Italy, the same sort of 
37

assumptions would have been made, would they not: defined event, 

defined place, time, airspace? 

MR. FREEH: A defined and specific threat in time and place, 

correct. 

MR. THOMPSON: Is it a fair assumption to leap from those 

kinds of examples to the notion that you could, with the best of 

intelligence or law enforcement or thought, (have) gone to an 

assumption that on any given day in any part of the United 

States, on any one of the more than 4,000 flights that are in 

the air on any given day in the United States, utilized the same 

methods and guard against the same kind of attacks? Or is that a 

leap too far? 

MR. FREEH: Well, I think, you know, to amass the kinds of 

resources and protective operation that you've both alluded to 

in your questions, there's a limited capability in terms of 

duration for that kind of an operation. 

For instance, with respect to the Millennium, we were 

planning for months and months prior to that event. And at the 

time of the Millennium, you know, thousands and thousands of law 

enforcement agents and other government agents, military 

personnel, you know, are on duty around the world because of a 

specific event. The attorney general and I were in, you know, 

our command post through the night on December 31st. But we 

could not have sustained that, you know, for weeks and weeks 

beyond that period, nor would there have been a basis to do that 

without a specific threat. 

So I think to do the kinds of protective operations that we 

would like to do, and do in fact perform when NATO's meeting, 

when the Pope is visiting, when the President is at a summit, 

when the World Cup is going on, when presidential conventions 

are in session, all of those events, in specific places and 

times, because of the threats as we understood them, including 

airborne threats, we were able to marshal resources and perform 

protective operations. But you need a time and place to do that 

if you have resources available. 

MR. THOMPSON: You testified that you transferred 600 agents 

from headquarters to the field because there was a 22-month 

hiring freeze in the FBI. Why was there a 22-month hiring freeze 

in the FBI, and when did it occur? 
38

MR. FREEH: Well, you'd have to ask Congress about why they 

had the freeze. It occurred for --

MR. THOMPSON: So it was a congressionally imposed freeze? 

MR. FREEH: Yes. We were not authorized to hire people for a 

22- month period. When I became director in September of 1993 we 

were in the middle of that freeze, and it went for a total 

period of 22 months, which is why I was putting people on the 

street from headquarters. 

MR. THOMPSON: Now the budgeting process in the federal 

government, with particular regard to the FBI, I assume works 

something like the FBI decides how much money they'll ask for in 

any given fiscal year, it moves up through the attorney 

general's office, goes from there to OMB, and from OMB to the 

Congress. Is that right? 

MR. FREEH: That's correct. 

MR. THOMPSON: In the whole time that you were the director of 

the FBI, did your initial requests for funding going up to the 

AG ever make it through that process, the level that the FBI 

requested? 

MR. FREEH: No, and that's probably true for every agency in 

this town. 

MR. THOMPSON: So true not only for you and the FBI, but your 

predecessors and successors and for every federal government 

agency. Is that right? 

MR. FREEH: That's correct. That's how the budget process 

works. 

MR. THOMPSON: Okay. 

The PATRIOT Act has some provisions that are due to expire 

next year, I believe. Do you believe that those provisions 

should be renewed, and do you think the PATRIOT Act needs 

strengthening in any provision apart from that to help us 

protect America from terrorism? 

MR. FREEH: Which provisions in particular are you speaking 

about with respect to renewal? 
39

MR. THOMPSON: There is a -- there were at least two. And I 

think -- it may not have been in your testimony, but in the 

testimony we'll hear later this afternoon from acting director -

-

MR. FREEH: Yeah, it's not in my testimony. 

I mean, I'll comment on them. 

MR. THOMPSON: Yeah. 

MR. FREEH: I just don't know which ones you're referring to. 

MR. THOMPSON: I think maybe in Pickard's -- (pauses to search 

through materials) -- well, let me come back to that after I 

find what I'm looking for. And let me ask you this --

MR. FREEH: Okay. I can answer the second part of your 

question. 

MR. THOMPSON: Go ahead. 

MR. KEAN: This will be the last question, Commissioner. 

MR. FREEH: Yeah. With respect to one area that's not 

addressed -- and I've mentioned this in my testimony, and the 

members of the Intelligence Committee and others have heard me 

testify about this repeatedly -- nowhere in the PATRIOT Act nor 

in any of the other post- September 11 measures is there any 

effort to address the issue of encryption. It's mind-boggling to 

me that in the aftermath of September 11th and the information 

that we've accumulated to date, including the use of encrypted 

channels of communication by terrorists, that our law 

enforcement agencies still do not have either the authority or 

the technology to break down encrypted messages. 

And for those who don't know about the issue -- none of the 

Commissioners, but other people -- encryption is the technology 

that allows message bits, communications, either data or voice, 

to be scrambled so you can't understand what's being said. 

Again, it's mind-boggling to me -- and I testified dozens and 

dozens of times, along with Janet Reno and others, for some 

relief -- that this is completely unaddressed. I think it's a 

huge gap in our national security, and one that I would urge the

Commission to look at. 
40

MR. THOMPSON: Thank you, Mr. Chairman. 

MR. KEAN: Commissioner Ben-Veniste has one clarifying remark 

MR. BEN-VENISTE: Director Freeh --

MR. KEAN: -- of 10 seconds. 

MR. BEN-VENISTE: (Laughs.) I think I can do it in 10 seconds, 

Tom. 

My good friend and former mentor Jim Thompson, I think, has 

misinterpreted the question put to you about the recognition by 

the intelligence community of the potential for planes being 

used as missiles. My question to you was -- given the 

substantial state of information, whether by rumor or by actual 

intelligence, relating to the use of kamikazes, suicide pilots, 

to crash planes into buildings, my question was, was it a 

failure in thinking not to re-position our domestic air defense, 

led by NORAD, to protect the capital and elsewhere against the 

possibility of attack on the United States by air, and 

particularly during time of heightened threat? You understood 

that that way. 

MR. FREEH: Yes. 

MR. BEN-VENISTE: Thank you. 

MR. KEAN: Commissioner Lehman. 

MR. LEHMAN: Thank you. 

Director Freeh, welcome. I have just a few short questions. 

First, during your tenure there were sanctuary laws enforced 

by New York City, by L.A., San Diego, Houston, Chicago and some 

other cities. These were well-known to al Qaeda, if not to the 

American public. These laws, as you know, in defiance of Section 

133 of the Immigration Act, prohibit local authorities in those 

cities from cooperating with the FBI or INS in any matters 

having to do with immigration. Did this trouble you during your 

tenure, and did you try to do anything about it? 

MR. FREEH: Well, as I mentioned in my written testimony, at 

the request of then-Deputy Attorney General Gorelick I made a 

series of recommendations with respect to the INS and asked that 

certain measures be taken, including legislative changes to give 
41

us a better ability to first of all identity alien terrorists, 

and then detain them and remove them promptly from the United 

States. 

With respect to the laws that you mention, I can't think of 

an instance in my tenure when that was a prohibition or an 

inhibition from us, either getting some information or doing 

something that we wanted to do. We were more frustrated with the 

length of time that it took to remove aliens for whom we had 

documented information with respect to terrorist activities. 

MR. LEHMAN: And those recommendations that you recommended to 

Justice, they were turned down or just ignored or --

MR. FREEH: No, they were actually implemented. In fact, 

President Clinton, to his great credit, introduced in 1996 the 

antiterrorism bill, HR 2703. Unfortunately, when it was in the 

House there was an amendment that was entered that was passed by 

a large majority that stripped the bill of most of its important 

counterterrorism measures, in fact the ones that Deputy Attorney 

General Gorelick and I recommended. In fact, I think two of you 

actually voted on the amendment. 

MR. LEHMAN: Thank you. (Laughs, laughter.) 

The case law approach has been a subject of a great deal of 

criticism from many of the witnesses and interviewees. You've 

made an able defense of it in your op-ed piece and in your 

testimony. However, it certainly has some limitations according 

to some of the witnesses we've had. 

We've had very senior officials in CIA tell us that they were 

unaware of any of the connections among the '93 World Trade 

Center terrorists because all the information was sealed and 

protected and not shared during the trial of the people. 

Particularly after that material was released and particularly 

after you were able to apprehend Ramzi Yousef, one of the 

principal actors who had escaped to Baghdad, Abdul Rahman Yasin, 

was in Baghdad and on the payroll of Iraqi intelligence. Did you 

recommend doing anything to extradite him or to render him in 

any way as one of the key al Qaeda operatives? 

MR. FREEH: Well, over the period of years after the World 

Trade tower indictments in 1993, but then maybe more 

particularly following the Manila Air indictment in 1995, and of 

course the 1998 indictments with respect to Bin Ladin and his 

associates, we continuously recommended and actually put into 
42

play operations to arrest and render fugitives back to the 

United States in those cases. 

I don't recall an instance with respect to Yasin. With

respect to Khalid Sheikh Mohamed, in early 1996 we actually 

staged agents over in the Persian Gulf and had an operation well 

underway to arrest him. He was transiting a country that we 

thought we could get access to him. Unfortunately, that didn't 

work. We believe he was actually tipped off about the operation. 

People like Kasi, who of course murdered the people outside the 

CIA, he was arrested by FBI agents, brought back, convicted of 

murder in Fairfax County. Ramzi Yousef we spoke about. 

So we continuously tired to get, and did in many cases get 

these fugitives. I don't recall a particular plan with respect 

to Yasin. 

MR. LEHMAN: One last question. The Oklahoma City case, again, 

one of the criticisms has been that once -- one of the problems 

of the case law approach to intelligence is that once you focus 

on convicting particular terrorists, that there has to be a 

hypothesis of the case, and that's where all the resources, the 

investigative resources, are put in. In the case of Oklahoma 

City, the hypothesis was that there were two Americans and they 

acted alone. 

There's a new book out now, as you probably know, called, 

"The Third Terrorist," that has new information that begs for 

further investigation, showing the links or purporting very 

significant links between Terry Nichols and Ramzi Yousef in the 

Philippines, and also links between the two perpetrators and 

Hussein al-Husseini, the Iraqi, perhaps, agent. 

Did you -- are you satisfied that you ran all of these 

potential al Qaeda links to ground with McVeigh and Nichols? 

MR. FREEH: Other than that book, which I haven't read, you 

know, I don't know any other credible source with respect to 

that kind of a link. No, I have not run those links myself. I 

certainly was not aware of them when I was FBI director. I know 

that there is a review going on with respect to some of the 

matters that have been raised by his attorney in connection with 

the state murder prosecution that's ongoing. I guess I don't 

want to say anything with respect to that case as it's being 

tried now by a judge and a jury. 
43

But I don't know of any connections, except the one you just 

mentioned, between Ramzi Yousef and that terrorist act. 

MR. LEHMAN: Thank you. 

MR. KEAN: Vice Chairman Hamilton. 

MR. HAMILTON: Thank you, Mr. Chairman. 

Thank you, Mr. Director, for your testimony. You commented in 

your opening statements about resources on several occasions. 

And I was looking at your recommendations at the end of your 

statement, your printed -- your written statement, and I quickly 

calculated about eight or 11 of those recommendations require 

additional funding. 

Maybe I'm a little sensitive to this because of my experience 

in the Congress. I took a quick look at the appropriations for 

the FBI from 1996 to 2001. It went up from 2.3 billion to 3.3. 

billion, roughly. That's a very, very dramatic increase. The 

amount of FBI personnel and funding dedicated to 

counterterrorism more than tripled between 1993 and 2001. Can't 

get into the specifics of those figures on counterterrorism, 

because I think they're classified. 

But I want to get a sense from you about this resource 

problem. I can understand in your position how you would 

constantly see the need for more resources. I'm not really 

critical of that. But your sense is that -- my sense of your 

testimony is that you could have done an awful lot better if 

you'd had a lot more resources. And in fact, you were receiving 

a lot more resources. 

MR. FREEH: Yeah. 

No, there's no question but we were receiving a lot of 

resources. I think my position, which was the attorney general's 

position, is there were not enough resources to work a 

counterterrorism program as the lead agency for the United 

States. As I said in my testimony, the FBI had 3.5 percent of 

the government's counterterrorism resources. And as you see in 

my recommendations, you know, the FBI only has 200 more agents 

now than it had back in 1999. It's not just a question of 

allocating agents from criminal programs to counterterrorism 

programs; it's really substantially enhancing not just the 

numbers but the training, the expertise, the continuity of 

people in that particular program. 
44

I mean, I'll give you examples that have nothing to do with 

people. The Technical Support Center, which the Congress 

actually authorized in 1995: The purpose of that center was to 

create a domestic civilian law enforcement facility where we 

could use technology to solve encryption problems, to solve 

digital telephony problems, et cetera, et cetera. But the 

purpose was to give us and our state and local counterparts a 

counterterrorism civilian technical ability in those cases. It 

wasn't funded until after September 11th. COLEA was never funded 

fully after 1994. Example and example of that, which doesn't 

mean -- and there's nobody more respectful of the budget process 

than myself -- perhaps you. I know how the budget works and I'm 

not blaming anybody for not giving these resources. 

MR. HAMILTON: I understand that. 

MR. FREEH: What I'm saying is that we weren't focused on them 

the way we're focused on them today. 

MR. HAMILTON: I appreciate that approach and I've listened to 

a lot of reports from commissions when I served in the Congress. 

And one of the advantages a commission always has over the 

Congress is, we don't have to worry about raising the money. We 

can just make the recommendations to spend it. And there's a big 

difference, of course. 

Final question relates to the broader responsibility. 

Director Mueller has made the pitch over and over again, and 

he's done it very effectively, that the FBI is changing its 

focus from law enforcement to the prevention of terrorism. And 

everybody of course nods their head in agreement -- that's 

exactly what ought to be done. This question goes a little 

outside the Commission's responsibility, but you mentioned a 

moment ago that we really have not had a large increase in

agents. So what's happening is, we're shifting a lot of 

resources, money and agents, from law enforcement, from criminal 

prosecution to terrorist prevention. And in the environment of 

today's world, that makes a lot of sense to most of us. But do 

you worry then that the FBI is going to lose its effectiveness 

in law enforcement and criminal prosecution? 

MR. FREEH: Well, that's an excellent question. I guess I 

don't believe that investigations are inconsistent with 

prevention. I subscribe to the theory that Mary Jo White and I 

testified to before the Joint Intelligence Committee, and which 

actually the court of review, in its November 18th opinion, 
45

noted, investigations do lead to prevention. I don't think 

there's a dichotomy between them. Manila Air, the millennium, 

the day of terror in New York were all preventions as a result 

of good investigations. 

So I think that's a false dichotomy between investigations 

and prevention. If you're doing good investigations, you're 

developing informants, cooperating defendants, like Omar in the 

trade bombing case. You're creating a database. You're sharing 

intelligence with other people. 

I do think there's a great danger in taking people off 

investigations that aren't, again, case- or defendant-specific, 

but are enterprise-specific, and, you know, when agents are off 

the streets, this is my bias, perhaps, as a street agent, 

they're not making informants, they're not developing sources. 

September 11th, had we had the right sources overseas or in the 

United States, could have been prevented. We did not have those 

sources. We did not have that telephone call. We didn't have 

that email intercept that could've done the job. You get that by 

having sources, and you get sources by good investigations. You 

also prevent terrorism in that regard. 

MR. HAMILTON: Thank you, Mr. Chairman. 

MR. KEAN: Congressman Roemer. 

MR. ROEMER: Thank you, Mr. Chairman. Welcome, Director Freeh. 

Nice to see you. And I want to just express my appreciation to 

you and your family for the sacrifices you made while you served 

as FBI director and also for your attention here today. 

You probably paid attention to the last several weeks of 

testimony before the 9/11 Commission. We had somebody here by 

the name of Mr. Clarke and somebody here about a week later 

called Dr. Rice. They didn't agree on much. They didn't see eyeto-eye on much. They didn't share many of the same opinions. 

They did agree on one thing, and that was that the FBI could've 

and should've done a better job than they did leading up to 

9/11. 

I want to point out two instances where we may have had an 

opportunity to do something about 9/11. 

Now I haven't come down on any kind of conclusion whether 

9/11 was preventable, but let me throw these out to you and ask 

you to carefully respond to them. 
46

One's the Phoenix memo, which I'll get to. The other is an 

instance where you have just talked about the informants of --

developing informants, getting information, sharing information. 

We had an opportunity where we had two of the hijackers have 

numerous contacts with an active FBI informant. Out of the 19 

hijackers, two of them have active contacts with an FBI 

informant -- doing the right kind of things, developing that 

informant, sharing information ahead of time from 9/11, the 

right kind of training for an FBI agent. Why couldn't this have 

made a difference leading up to 9/11? 

MR. FREEH: Okay. It's -- let me give you a careful answer. 

And again, I don't know all the facts, except, as you know, you 

know, what I've been reading and listening to. 

You know, the presence of those two hijackers in San Diego 

and their intersection with the informant -- obviously, you 

know, a very fruitful opportunity for exploitation, intelligence 

information; maybe, in the best of all circumstances, leading to 

prevention. 

It would have been helpful -- it would have been helpful --

for the FBI at that particular point in time to know the names 

of those two individuals; that the information which was 

generated in the January 2000 physical surveillance, not by the 

CIA but by a liaison agency -- if that information and the 

initiation for that surveillance, which were phone calls to a 

central number, which you're well aware of, which plays a 

integral role not only in the East African bombings case but 

also in the Cole investigation; the, you know, June meeting when 

three but not all of the photographs were disclosed to FBI 

agents and the subsequent description of those events -- if all 

of that had worked the way it could have worked, and that 

informant, as well as informants all over the FBI's domain, were 

tasked to find out information about two specific people, you 

could have had a completely different result. 

Now some of that's speculation, but some of it is theory. 

MR. ROEMER: Well, later, Director -- later on we'll ask 

representatives of the CIA and the FBI whether or not that 

meeting in Kuala Lumpur should have led to the sharing of some 

of that information and those names. 

Let me ask you another question. Here is a declassified copy 

of the Williams memo. And you said, in an answer to a previous 
47

question, that you thought things might have been handled the 

proper way. This agent asks that two things be done: one, that 

the FBI should accumulate a listing of civil aviation 

universities and colleges around the country and share these 

with the appropriate liaison, and two, that the FBI should 

discuss this matter with other elements of the U.S. intelligence 

community. 

Neither one of those is done. 

Now I agree with you, this is not the road map to 9/11, but 

it's certainly asking to do two things, to New York and 

headquarters. Neither one of them are done. Why not? 

MR. FREEH: Well, I don't know. I mean, I can't answer that 

obviously for the time and space reasons that are obvious. I 

could speculate on it, and what I would say is that, you know, 

the simple fact or the apparent simple fact of getting from all 

of those civil aviation schools around the United States, you 

know, names and identifying information of those students --

first of all you would have had to overcome a couple of federal 

statutes that prevent educational institutions from giving that 

information out without a subpoena or a grand jury request. 

Assuming you could have done that --

MR. ROEMER: But Mr. Williams didn't do that in Phoenix, did 

he? I mean, he found out the trend in Phoenix without having to 

go around a statute or a law, right? 

MR. FREEH: Well, yeah, but what he's asking for is a national 

investigation that would direct itself --

MR. ROEMER: He's asking them to task. 

MR. FREEH: -- to thousands and thousands and thousands of 

students who are from Arab countries who are taking flight 

lessons in the United States. I don't -- again, I wasn't -- I'm 

not privy to the information your staff is privy to. From what 

I've read and heard and talked to, I don't see how that memo 

unfortunately gets you to prevent the horror of September 11th. 

I just don't see it in any logical, nonspeculative way. 

MR. ROEMER: I'm not sure that it prevents 9/11 either, but it 

sure points out two or three things that could have been done 

more efficiently. 

Thank you, Mr. Chairman. 
48

MR. KEAN: Our last questioner will be Senator Gorton. 

MR. GORTON: Mr. Freeh, you heard just before your testimony 

the staff report on matters relevant to this hearing. The facts 

outlined in that staff report are almost certain to find their 

way into our final report unless someone shows us that in whole 

-- in some part they are irrelevant. I want to read you one 

paragraph -- it was the subject of Bob Kerrey's question -- and 

ask you whether or not it is accurate. 

The staff report reads: "The FBI's inability or unwillingness 

to share information reportedly frustrated White House national 

security officials. According to the former national 

counterterrorism coordinator, Richard Clarke, the National 

Security Council never received anything in writing from the FBI 

whatsoever. Former Deputy National Security Advisor James 

Steinberg stated that the only time that the FBI provided the 

National Security Council with relevant information was during 

the Millennium crisis." 

Clarke told us that Attorney General Reno was notified that 

the National Security Council could not run an effective 

counterterrorism program without access to FBI information. Is 

that a correct characterization? 

MR. FREEH: I don't think it is. I can't speak for the 

frustration of other people, but with respect to sharing 

information -- you know, I didn't provide written memos to Sandy 

Berger or the President or anybody else at the NSC, but as I 

said before, the attorney general and I, every two weeks, almost 

like clockwork in the last 14, 15 months of our overlapping 

tenure, sat with Sandy Berger in his office for at least an 

hour, perhaps two hours, and went over every single piece of 

counterterrorism, counterintelligence case that we had. 

By the way, Dick Clarke was never present at any of those 

meetings. Why Sandy Berger didn't want him there, I don't know. 

But we had detailed discussions of all those matters on a biweekly basis. So the notion that we weren't sharing information 

is, as far as I'm concerned, an incorrect characterization. 

MR. GORTON: The FBI is a unique institution in the United 

States of America. You had a fixed term. Because of various 

activities under your predecessor, J. Edgar Hoover, and 

attempts, sometimes successful, in earlier administrations to 

use the FBI for political purposes, there seems to be a certain 

divorce or distance between the FBI and the White House. Did you 
49

feel an ability to go to the President of the United States or 

to someone else in the White House during the Clinton 

administration freely? Did you feel that the White House felt 

free to contact you and communicate with you and ask you for 

information in a normal manner outside of the realm of politics 

during the Clinton administration? How many people in the White 

House did you ever see or communicate with? And then would you 

answer the same question with respect to the current Bush 

administration. 

MR. FREEH: Yes, I will. I don't feel -- I don't feel that I 

had any restriction or any prohibition or certainly no 

reluctance to discuss and communicate with anybody appropriately 

in the White House, in the State Department, in the Defense 

Department with respect to any of the matters we've been talking 

about today or any other FBI matters. There was certainly no 

distance or separation between the attorney general and I. And 

we had -- I had, in both administrations, I think, the same 

relationship. I never felt any restrictions or inhibitions about 

communicating things. I don't think they did either. And they 

never expressed any to me at the time. 

MR. GORTON: One final question, like the first question, 

another paragraph in the staff report. “The Department of 

Justice inspector general found that when the FBI designated 

national and economic security as its top priority in 1998, it 

did not shift its human resources accordingly. According to 

another external review of the FBI, by 2000 there were twice as 

many agents devoted to drug enforcement matters as to 

counterterrorism. On September 11th, 2001, only about 1,300

agents, or 6 percent of the FBI's total personnel, worked on 

counterterrorism.”

Are those accurate statements of fact? 

MR. FREEH: No, they're accurate. But again, I think they have 

to be balanced with the discussion we've had here today about 

resources. And with all due respect to the congressional 

appropriation process, in 2000, which was the last 

counterterrorism budget year that I testified for, you know, I 

asked for $860 million -- I'm sorry -- (correcting himself) --

$360 million, 890 positions. I got five positions and $6 

million. You can't fight a war with those kinds of resources. 

So your report is accurate. I would hope the Commission would 

expand a little bit on the executive director's brief, although 

accurate, statements about resources and legal authorities. 
50

MR. GORTON: Thank you, Mr. Freeh. 

Thank you, Mr. Chairman. 

MR. KEAN: Mr. Freeh, thank you very much. Thank you for your 

testimony, thank you for your public service, sir. 

MR. FREEH: Thank you.

PANEL TWO OF THE TENTH HEARING OF THE NATIONAL COMMISSION ON 

TERRORIST ATTACKS UPON THE UNITED STATES RE: "LAW ENFORCEMENT 

AND THE INTELLIGENCE COMMUNITY" THOMAS H. KEAN, CHAIR; LEE H. 

HAMILTON, VICE CHAIR

WITNESS: JANET RENO, FORMER U.S. ATTORNEY GENERAL

11:10 A.M. EDT, TUESDAY, APRIL 13, 2004 

MR. KEAN: Our second witness today will be the Honorable 

Janet Reno, who served as attorney general of the United States 

during the Clinton administration. 

Madame Attorney General, we are very pleased to welcome you 

today before the Commission. Would you please rise and raise 

your right hand? 

Do you swear or affirm to tell the truth, the whole truth, 

and nothing but the truth? 

MS. RENO: I do. 

MR. KEAN: Please be seated. 

Madame Attorney General, your prepared statement will be 

entered into the record in full. We would ask you to summarize 

your opening statement and proceed. 

MS. RENO: Thank you very much, Mr. Chairman. It is a 

privilege to be here before you today because I believe this 

commission is performing a function of the utmost importance to

our nation's future. I thank you for giving me the opportunity 
51

to give my perspectives, based on my service as attorney 

general. 

We understood from early on in the Clinton administration 

that terrorism posed a grave threat to Americans on American 

soil. The bombings of the first World Trade Center -- the 

bombing in the first World Trade Center case took place just 

before I came into office. I inherited that case. I had the 

opportunity to be briefed; I had the opportunity to meet with 

the prosecutors and the agents involved to understand the 

details and to follow through on the case as it expanded into 

further investigation involving Sheik Rahman. I even made the 

final decision to indict Sheik Rahman. 

So it has been an issue that has been with me ever since I 

first became attorney general. And I've continued to think back 

to those days when I made that decision, did not know of the 

connection with al Qaeda, and watched it develop, so that by 

1998, we understood that it was a terrible threat to this 

country and that we had to do everything we could to be 

prepared. 

Other events followed, and they gave me better perspective. 

But what I think is important for me to do today, Mr. Chairman, 

is to try to come to the issues so that we can answer the 

questions of the family, so that we can provide the best advice 

we can on how we can prevent this for the future -- not talking 

about blame, not talking about partisan politics. And this 

commission has done, I think, a wonderful job in terms of trying 

to get to the issues without the politics involved. I think we 

owe it to the American people. 

I think, as we -- just to set the background, I came into 

office in March of 1993. There was a change in leadership to 

come in the FBI. We inherited a situation where there were 

budget difficulties. We had two major operations under way, 

systems being designed, the NCIC system and the IAFIS system, 

that were to become very important to the FBI. But they were 

over budget and behind time. Director Freeh had to face these 

situations, and there was much to do. But, I think, let us look 

at what needs to be done. 

First of all, I am so proud of the FBI, the agents that I've 

worked with. I've seen so many in action. I've seen them do 

incredible things. I've seen them risk their lives. And I have a 

profound respect for all the people that I have worked with in 

the Bureau. 
52

But quickly, when I came into office, I learned that the FBI 

didn't know what it had. We found stuff in files here that the 

right hand didn't know what the left hand was doing. And it was 

obvious that the development of a computer system and a system 

of automation would be very helpful to it. But it was also 

important for people to begin to look at manually what they 

could do to find out what they had and what they didn't have, 

and we proceeded in that direction. Sometimes I thought we had 

made progress, but then we'd find something else that we didn't 

know we didn't have. 

It was very difficult for the FBI to get that problem solved, 

with Congress’ concern about the overruns on the two major 

projects that preceded it. Director Mueller has had the chance 

to develop the program. From what I've heard, it's coming online 

or is online. I'm not sure. But the one recommendation I would 

make first is that he be given the congressional support and 

that we find the expertise, if any further is needed, to ensure 

that that system works correctly, to ensure that agents and 

others who utilize it know how to utilize it to its maximum 

capability; that we address the issue of security and understand 

how we maintain this system, which will be the repository of 

probably more information than most any other agency could 

compile on such a diverse number of issues. And I just think 

that that would be extremely important. 

Director Freeh has suggested that there were two other issues 

that were problems: resources and legal authorities. I think 

it's important -- I checked yesterday with the department and 

the best I can read, in the year 2002, he submitted a budget of 

over a billion dollars. I think I asked for an increase for $462 

million, of which part of it was -- and I can't go further on 

that. 

As Director Freeh pointed out, everybody knows that we're 

competing for limited resources in the budget process, and 

people ask for more than they know they're going to receive. But 

I worked very closely with Director Freeh to try to make sure 

that we properly pursued a request that reflected the needs of 

the Bureau. I checked and an appeal was taken from two items. I 

think I approved both items. And what I think we need to do is 

make sure, and Director Mueller may have already addressed this 

issue, make sure that we provide the FBI with the financial 

expertise that is necessary in the budgeting process and in the 

technology process to make sure that we understand the processes 

of Congress and get it done right. 
53

With respect to reprogramming, when I came into office I was 

told that the FBI had come out of the Cold War. They now had 

agents who needed something to do and that they had been 

assigned to and were involved in fighting street crime. Well, 

America has a lot of resources committed to fighting street 

crime now. Community police officers were hired, other steps 

were taken. Crime is down and state and local law enforcement 

can do that, or at least do a very good job of it. If we needed 

to reprogram, I told Director Freeh, let's do it and get these 

people into counterterrorism. We have a drug enforcement agency; 

if we need to do it, let's get these people into 

counterterrorism. 

Yes, it's sometimes difficult to get reprogramming approval 

from Congress. But if we have people who work with the 

Department of Justice, do it the right way, come forward in 

clear statements, I think we can do a lot more in terms of 

reprogramming. And if Director Mueller needs support in that 

area, I think that's important. 

With respect to sharing, one of the frustrations is that the 

Bureau, even when it finds that it has something, doesn't share. 

And it says it doesn't share because legal authorities prohibit 

it from sharing. 

But I haven't been able to find, with respect to the one 

instance of the two who came into this country and how we just 

missed them, what prevented anybody from sharing. 

Much of these issues -- many of these issues will or have 

been resolved by the passage of the PATRIOT Act or other 

statements, but I think it is extremely important that the 

director or whoever leads the FBI understands that you've got to 

repeat the message again and again. And when you institute new 

programs -- and I've seen it now based on some of the steps that 

I took -- you've got to make sure that people understand and are 

trained in an effective, comprehensive way as to new proposals. 

Otherwise there tends to creep in a feeling that, well, I don't 

have to do this or that's too much trouble or it's -- if they 

know how to do it and if we train them right we can expect far 

more. 

They say they can't exchange information with the CIA, but 

it's all in the context of cases where the FBI and the CIA have 

been exchanging information. What suddenly prevents them in one 

situation and not in the other? We can't be selective. Again, we 

have got to change, and the only two limitations that I have 
54

seen with respect to the transfer of criminal investigation 

materials to the foreign counterintelligence effort is grand 

jury and Title III. It had been our impression that with 

appropriate authority then we could do that, and did that in a 

number of instances, but that's not an issue anymore. And if 

there are any issues that linger and remain that say we can't 

share because of legal authorities, then let's make sure that 

we've addressed those, and if we haven't addressed them make 

sure that we take training steps to do it. 

I'm not sure that I heard Director Freeh correctly, but one 

of the points that I think he made was to the effect that the 

1995 direction that I gave by letter, that anybody who had 

reasonable suspicion that they had foreign counterintelligence 

information that would be relevant to a criminal investigation 

should take steps through the letter that I sent to make sure 

that contact was made with the Criminal Division -- Director 

Freeh says that shouldn't apply in counterterrorism cases, but 

if the FBI people have information that will go to the 

investigation/conviction immediately of the person we're trying 

to take out of the system, then it seems to me a good thing to 

do. 

I don't blame anybody. I'm responsible. If somebody wants to 

be responsible it's going to be me because I tried to work 

through these issues while I was attorney general and time ran 

out on me. And I want to do everything I can to make sure that 

we move forward in a spirit of cooperation and in a spirit of 

thoughtfulness. If there are problems that develop, then I think 

it's important that we address those and get those clarified.

There's a lot of talk about --

MR. KEAN: If we could sum up now, because we're getting short 

on time. 

MS. RENO: -- a lot of talk about a new agency. Don't create 

another agency. The worst thing that you -- or recommend it. The 

worst thing you can do is create another agency and then we'll 

be back talking about whether they can share here or there or 

what. Let's try to work through it. Director Mueller has the 

confidence of so many people. He is a wonderful person. He 

worked with me when he was the U.S. attorney in the Northern 

District of California. He is approaching things in a thoughtful 

way. Let's back him up and give him the best tools we can to get 

the job done. 
55

MR. KEAN: Thank you very, very much. 

Lead questions are going to come from Senator Gorton. 

MR. GORTON: When Osama Bin Ladin declared war on the United 

States, did he have a position, in your view of the law, that 

protected him from assassination under the anti- assassination 

attempt provisions of our laws and regulations? 

MS. RENO: I have not opined on that, and I would have to look 

at all the facts at the time of the fatwa to know. 

MR. GORTON: That's preliminary to a number of reservations, 

or even complaints, that we have heard directly or indirectly 

from people in the CIA that your office counseled the White 

House against any memorandum of notification which unambiguously 

allowed for the CIA simply to kill or to eliminate Osama Bin 

Ladin, and that that contributed to the fact that all of its 

plans inside of Afghanistan failed to come to fruition or were 

never ordered into execution. Can you comment on that? Did the 

CIA or did anyone in the White House ask your view as to whether 

that phrase could be unambiguous? And did you answer that 

question in the negative? 

MS. RENO: I was not asked whether they could assassinate him. 

I was asked whether they could capture or -- and follow through. 

MR. GORTON: Okay. You were only asked if they could capture 

him or perhaps kill him in an attempt to escape or to resist 

that. You were never asked the question as to whether or not he 

could be killed unambiguously? 

MS. RENO: I need, Mr. Chairman, some direction. I don't know 

what the Commission has done in terms of the declassification of 

these issues. And I want to be able to answer the question. 

MR. HAMILTON: Madame Attorney General, I think if there's any 

doubt in your mind, we should probably talk with you about it 

privately rather than publicly, particularly on this subject, 

which is a very sensitive one. 

MS. RENO: I'm happy to do anything that will forward the 

issue. So --

MR. GORTON: We'll submit that question then to you in a 

closed session. 
56

You've heard Director Freeh speak of his relationships 

through you with the White House on these security issues. Would 

you characterize for me whether you felt that the President and 

the White House and the National Security Council felt any 

inhibitions about relationships, questions to, or answers from 

the Federal Bureau of Investigation while you were attorney 

general, by reason of the history of the sometime misuse of the 

FBI by -- you know, in previous administrations. Or was the 

communication free and open, as far as you were concerned, 

during the whole Clinton administration? 

MS. RENO: When -- I think when Tony Lake was national 

security advisor, he came to the Department of Justice and we 

discussed the exchange of information and the necessity to keep 

the national security advisor informed. There was concern 

because these were criminal cases, and I think the Bureau had 

some concerns. But I said in any instance in which any 

investigation or any effort that the FBI was undertaking had an 

effect on national security, some of the top people on the 

National Security Council would be advised. We were supposed to 

reduce that to writing. It never got reduced to writing, but it 

was always the governing principle that I had. It didn't get 

reduced to writing because people were concerned about the 

independence of the FBI and couldn't get the language straight. 

But I think the communication developed there --

MR. GORTON: In fact, the relationship worked, as far as you 

were concerned, openly and freely? 

MS. RENO: There would be complaints made. And that's the 

reason during the last year and a half I went to a situation 

where we had regular meetings between Director Freeh and Sandy 

Berger and myself. 

MR. GORTON: And did you feel that your communication -- your 

lines of communication with Director Freeh were free and open 

and that you always got the information from him that you 

needed? 

MS. RENO: I had a working relationship with Director Freeh 

where I could call him and say, "May I come see you and see 

exactly what's going on. Can we sit down and talk about it?" And 

I always felt that I got a very straight answer and had a good 

working relationship with him. 

MR. GORTON: One of the factual findings of our staff for this 

meeting here today says that you were -- that you had already 
57

told us in private sessions that you were very concerned about 

the Bureau's information-sharing and intelligence capabilities. 

And the staff statement goes on to say, "In 2000, Reno sent 

several memoranda to Director Freeh expressing these concerns. 

One memo stated that, quote, `It is imperative that the FBI 

immediately develop the capacity to fully assimilate and utilize 

intelligence information currently collected and contained in 

FBI files and use that knowledge to work proactively to identify 

and protect against emerging national security threats,'" end 

quote. "Reno's requirements involved improved information 

sharing, improved counterterrorism training, a threat assessment 

and a strategy to counter that threat." And then it goes on to 

say, "It is not clear what actions the FBI took in response to 

these directives from the attorney general." Is it clear to you? 

Did the FBI respond positively to that direction? 

MS. RENO: What I think had happened -- and I'm not sure 

exactly of the time frame on it, Senator, but what I think 

happened in the chronology is that Bob Bryant had started 

earlier to look at some of these issues with respect to how we 

organized and how we managed the information and how we assigned 

priorities and how we assigned tasks and how we made sure that 

we filled the gaps with respect to intelligence information. 

When Bob Bryant left, Dale Watson pursued this and continued 

to try. I think we -- both men made real progress, and I think 

that much of what I hope has been done in the Bureau has built 

on that progress. That's what I was trying to get at. 

I sent the memo and -- along with other memos, at about the 

same time, to make sure that we were absolutely on the same 

wavelength, because there had been -- for example, I kept 

finding evidence that we didn't have -- didn't know we had. And 

I would talk to somebody, and they'd say, "Well, just wait till 

we get automated." I said, "How do you know what you're going to 

automate unless you find it now? You're going to have to find it 

now, so let's start and get ready to go." And it was a push in 

that direction. 

I think this is going to be -- when it's finally totally 

implemented, it's going to be a tremendous tool for the Bureau. 

It probably is now. I don't know. But that was my reasoning. 

MR. GORTON: So this was a long-range direction, going well 

beyond the end of your term as attorney general, but you think 

progress was being made as a result of that memorandum --
58

MS. RENO: I don't know whether it was as a result of the 

memorandum. They may say they were already doing it. But I did 

it to push it. And then when the attorney general invited me to 

have lunch with him after he was sworn in, I came up to 

Washington. And we sat down and talked about issues that I 

thought were important, and I gave him a set of the memos. 

MR. GORTON: Now I'd like, as my last question, to have it 

very open-ended and to get the -- for us the benefit of your 

wisdom from eight years as attorney general and much deep 

thought on this subject: with respect to the PATRIOT Act. On 

page 4 of your written testimony, for example, you say, "We 

continued to seek additional authorities, such as pen register 

authority under FISA, which we were not able to get passed 

during my tenure, but that ultimately became a part of the 

PATRIOT Act." 

And Ms. Gorelick tells me you also asked for legislation 

lowering the FISA bar with respect to intelligence sharing. 

Your reflection now, after several years, just in general 

terms on the PATRIOT Act, did it go too far? Did it not go far 

enough? Are some of the provisions -- are there some of its 

provisions about which you have reservations and would not like 

to see renewed? And are there elements related to our national 

security that weren't included in it that you would recommend 

that Congress adopt when it deals with the renewal of the 

PATRIOT Act? 

MS. RENO: I have been asked about the PATRIOT Act, and I've 

always said that the PATRIOT Act was kind of the umbrella that 

everything -- that everybody saw happen after 9/11 that they 

didn't like it fell under. But generally everything that's been 

done in the PATRIOT Act has been helpful, I think, while at the 

same time maintaining the balance with respect to civil 

liberties, except with one respect, to one matter. And there has 

been so much discussion about it, one of the things that I hope 

we might be able to do is to build on what the Commission does 

and have an opportunity to sit down in a thoughtful, nonpartisan 

way and talk about the details of the PATRIOT Act so that people 

will have a better understanding of them. 

But one issue is with respect to FISA searches. I don't have 

all the details with me, but that would be one area that I would 

like to learn more about in terms of the Administration's 

perspective. And it just seems to me a wonderful time when we 

could stop for a minute and say this is national security, this 
59

is where America should come together, this is how we should sit 

down, and must address these issues and see if we can come up 

with a consensus that will have the confidence of the nation. 

MR. GORTON: So of all of the provisions of the Act, the one 

that you believe requires the most discussion and concern 

without having a specific position is those search authorities? 

MS. RENO: Yes, sir. 

MR. GORTON: Now, are there things that you think would be 

helpful in promoting our national security that were included in 

the original PATRIOT Act that you would recommend in any 

successor act? 

MS. RENO: I can't think of anything off the top of my head. 

MR. GORTON: (Laughs.) In other words, it covered all your 

wish list and more? (Laughs.) 

MS. RENO: Where I think we've got to go -- it's important to 

cover the wish list, but where we've got to go is making sure we 

use our experience to make the system work. It's not going to be 

resources. It's not going to be legislation necessary. It's not 

going to be legal authorities. It's going to be people sitting 

down and starting to exchange information, starting to share, 

starting to trust each other, starting to end the culture that 

says this is mine, I've got to keep it to me because it's my 

case. 

MR. GORTON: With respect to the way in which we deal with 

intelligence activities inside the United States for national 

security, do you believe that the FBI is the proper agency for 

that, or that it should be separated, you know, from, you know, 

the agency and handled in a different fashion? 

MS. RENO: I have seen the FBI do absolutely wonderful work, 

and I think if we can address the issues that I talked about, in 

terms of resolving confusions, addressing points that need 

resolution, I think the FBI can do a wonderful job for this 

country. 

MR. GORTON: From your observation from the outside, do you 

think Director Mueller is moving in that direction? 

MS. RENO: I think he is. I have a great respect for him and I 

think we should all back him up and help him get the job done. 
60

MR. GORTON: Thank you, Mr. Chairman. 

MR. KEAN: Congressman Roemer. 

MR. ROEMER: Thank you, Mr. Chairman. 

Welcome, General Reno. And nice to see you again, and 

appreciate your testimony to us. 

You've mentioned several times that you hope to have a 

nonpartisan discussion between us and sit down and talk about 

these key national security issues. I hope that's what we can 

have here this morning, a very honest discussion. We may have a 

disagreement or two, but hopefully we can engage in that candid 

discussion. 

Let me start by asking you about the FBI, the memos that you 

sent to the FBI. 

One was on February the 29th, 2000. And you sent it to the 

FBI to, and I quote, "develop and implement a system to ensure 

the linkage and sharing of intelligence, evidence and other 

relevant information," unquote, among all components of the FBI, 

and stating that you wanted, quote, "the system in place by 

October 1, 2000," unquote. 

In March, a March 8th, 2000, letter, again to the FBI, you 

write, and I quote, "the bottom line is that we must develop a 

capacity within the Federal Bureau of Investigation, in all 

fields, to identify relevant information and share it internally 

and then share it securely with other agencies as authorized by 

law and the attorney general guidelines," unquote. 

And then a May 2nd, 2000, memorandum, to the FBI. You say you 

believe it's imperative that the FBI "immediately develop the 

capacity to fully assimilate and utilize intelligence 

information currently collected and contained in FBI files and 

use that knowledge to work proactively to identify and protect 

against emerging national security threats," unquote. 

Pretty strong memos; memos that you shoot off almost every 

month for a four-month period. What prompts these concerns on 

your part, about emerging national security concerns? 

MS. RENO: What prompted me is we had an opportunity during 

the millennium investigation, in the process that led up to it, 

to come together, to work together. And I would ask about a 
61

specific matter. Have you checked this to see if we have any 

additional information? 

MR. ROEMER: Can you give me an example of that, General Reno? 

What --

MS. RENO: I was trying --

MR. ROEMER: What triggered it, in your mind? 

MS. RENO: What would trigger it is something that I had 

learned before where I discovered that they hadn't checked to 

see whether there was information in a certain district, though 

they knew they might have a person there that might be involved. 

And it was just going through that investigation, going 

through the long nights that we sat there and tried to put the 

pieces together, the meetings with the principals, it was -- we 

don't have it yet, and I don't want to leave this office without 

making sure that we are on track. 

MR. ROEMER: Let me ask you --

MS. RENO: Louis' response was -- and the reason I sent the 

one memorandum that says I realize that automation may be 

important -- Director Freeh had said we need the automation. And 

he's absolutely right. And it was very difficult for him to get 

that automation in light of the prior overruns on systems that 

he didn't have real responsibility for.

MR. ROEMER: Did you feel like you were frustrated in sending 

the series of memos to try to trigger this activity, this 

proactive activity at the FBI? 

MS. RENO: I think they express a certain amount of 

frustration, but it was not so much frustration as to, let's get 

it understood; if we don't have the automation, what have we 

done to start finding what information we have? And I think by 

the fall, he had identified the expert -- the retired IBM expert 

and we were on the way to getting it worked out. But I still 

think it has been a difficult process. And I don't -- I am not 

criticizing Director Freeh, I am talking about what I thought 

was essential at the time. And it expresses frustration, but 

more importantly, it's hey, here's a vision, let's achieve it. 

MR. ROEMER: Did you lack confidence in the FBI's ability to 

accumulate information due to these technological problems? 
62

MS. RENO: I didn't lack confidence in its ability to 

accumulate. It accumulated more information than, I mean, it --

MR. ROEMER: How about share it? 

MS. RENO: Knowing -- what I lacked confidence in was it 

knowing what it had; and the second thing was, if it knew what 

it had, sharing what it had. 

MR. ROEMER: Now, you said in your statement that "Shortly 

after he took office, Attorney General Ashcroft invited me to 

lunch with him," and you gave him these same sets of memorandum. 

Did you feel like there was some progress then after you gave 

these same pieces of paper to General Ashcroft, that he was 

going to implement this change and do something different from 

what the FBI had done or not done leading up to that time? 

MS. RENO: I had, obviously, left office by that point and was 

no longer briefed or privy to what was going to be done, so I 

don't know what was done. And I apologize to everybody concerned 

if I've been presumptuous in suggesting what Director Mueller 

needs, because I haven't really been involved, but I'm giving my 

historical perspective of the time. And I think Attorney General 

Ashcroft was very gracious and said "this is very interesting," 

and I don't know what happened after that. 

MR. ROEMER: Let's stay on the topic of your relationship to 

the new attorney general. In the transition period, were you 

able to brief Attorney General Ashcroft as to your concerns on 

counterterrorism? And did al Qaeda come up in that briefing? 

MS. RENO: I don't know whether al Qaeda came up in the 

briefing or not. I cannot recall whether I specifically talked 

to him about al Qaeda. But what I did talk about was reflected 

in the memos which I gave him, which is if we don't put the 

pieces together and connect the dots, there's going to be 

something that happens. And there is so much information out 

there, it is so important that we get this done. And that's the 

reason I brought the memos with me. 

MR. ROEMER: Do you recall -- and excuse me for pushing you on 

this -- but do you recall mentioning al Qaeda, Osama Bin Ladin, 

domestic cells of terrorists in the United States to the new 

attorney general? 

MS. RENO: No, I don't. 
63

MR. ROEMER: You don't recall that. Do you recall being 

briefed on that type of domestic threat by FBI personnel 

sometime in the 1990s? 

MS. RENO: Cells? What I was briefed on was what the Bureau

had underway. I don't recall a briefing on cells in the United 

States. 

MR. ROEMER: So all throughout the 1990s, when you had people 

like Dale Watson or Director Freeh, your contacts with the 

National Security Council, they never briefed you on al Qaeda 

cells or a presence of al Qaeda in the United States -- '98, 

'99, 2000, sometime in that period? 

MS. RENO: They briefed me on the presence of al Qaeda in the 

United States. But in terms of cells and where they were, I 

don't recall such a briefing. 

MR. ROEMER: And therefore, you had no specifics at that 

point, so you did not brief the new attorney general on 

something like that? 

MS. RENO: What I thought was important was with respect to 

all terrorism issues, I told him that it was, to me, one of the 

most important issues. And one of the things that is critically 

important, I never focused just on al Qaeda because I stood 

there and watched the Murrah building in rubble, just as we saw 

the beginnings of the Oklahoma City bombing on CNN and tended to 

jump to conclusions. You can't jump to conclusions. You can't 

say that one thing is going to be our overriding issue. 

I think one other recommendation I would make is we have got 

to be prepared for terrorism in any form, and a focus on one is 

going to make it difficult. 

MR. ROEMER: I want to push back a little bit on the Clinton 

administration here and the priority on terrorism. You say in 

your statement, "Priority of Counterterrorism Efforts: 

Counterterrorism was a top priority for the Department of 

Justice. This priority was reflected in the department's 

Strategic Plan." 

Now, if it's a top priority for you and your administration, 

wouldn't that be one of the first things that you brief to the 

new attorney general -- counterterrorism, al Qaeda, the domestic 

threat? 
64

MS. RENO: Which I did, and which I set -- I did. And the 

point that I thought most important to make was, if we were 

going to protect this nation's economic and national security, 

we had to be prepared at the Bureau in terms of the information, 

information sharing, organization, training of people, and that 

was the point I was making. 

MR. ROEMER: Okay. 

Well, let me come back to a time period when you seem and the 

Clinton administration seems to be working on al Qaeda and the 

Millennium threat with meetings five and six times a week, maybe 

a couple a day with principals involved in them during the 

Millennium period, in December of 1999. Do you recall, General 

Reno, at all -- can you describe your personal role in this 

Millennium threat period, how often you may have sat down with 

the national security advisor, Sandy Berger, the President of 

the United States? The Clinton administration has a great deal 

of success during this time period deflecting or foiling 

Millennium plots. A great deal of this, in my humble opinion, my 

theory is because of this small group that is meeting at the top 

levels of government and pushing decisions down into the 

bureaucracy to get things done. 

I want to know your recollection of this time period. How 

often were you meeting with the principals? How often were you 

meeting with the President? How involved were you in this? How 

involved were you with the FBI and the CIA? 

MS. RENO: I spent a lot of time at the SIOC. 

MR. ROEMER: The SIOC? If you'd explain. 

MS. RENO: Somebody help me. (Laughter.) 

MR. : (Laughs.) Secure --

MS. RENO: Strategic Information --

MS. GORELICK: -- Operations --

MR. : -- Operations Center. 

MS. RENO: -- Operations Center. I would meet with them at the 

SIOC. 
65

Let me stress, and I think it's important because people have 

dismissed what happened during that time by saying it was 

because of an alert Customs officer. I want to pay special 

commendation to the alert Customs officer. She was sharp and 

right on target, and it was an extremely -- it wasn't a lucky 

break. It was a great break by a good officer. 

But it is so important to be able to capitalize on this, to 

follow through. You have a window. You have an opening to see 

what's happening, and it was extraordinary to sit in that 

command center and to see the results come in and to follow it. 

And then during the height of the crisis I literally sat at the 

Office of Intelligence Policy Review till the early hours of the 

morning to be prepared to sign it at the soonest time possible, 

to sign the FISA application. And to see the whole network and 

operation is an extraordinary experience, and something --

people told me when I came to Washington that there would be one 

area that would seem mysterious and would be new, and that was 

the intelligence function of the department. 

You can't go to the university to really learn it; at least I 

haven't found the course that really teaches it. You've got to 

come in; you've got to be as prepared as you can to learn to 

find the good people that can make the difference, find the 

people that make the link. And sometimes, you've got to sit 

together. And so I can say, but George --

MR. ROEMER: And George, was that George Tenet, the director 

of the CIA? 

MS. RENO: -- referring to Tenet -- what about this and what 

about that? And --

MR. ROEMER: Was Mr. Freeh in the room with you as well? 

MS. RENO: Director Freeh would oftentimes be there. And the 

Bureau did a wonderful job, but you can't -- I think it's 

important for the principals to be involved because they can cut 

through to the hard issues, they can cut through the red tape, 

they -- it is very important. 

MR. ROEMER: My time's just about run out. Just to clarify one 

point then. You think the decision made by the guard on the 

border to get Ressam coming into our country to bomb the Los 

Angeles International Airport then was somehow related to the 

frenetic, active activity --
66

MS. RENO: No. 

MR. ROEMER: -- of the principals meeting? 

MS. RENO: No. I think she did that -- I mean, I think that 

was just good police work. And it was a lucky break for us. But 

you've got to capitalize on lucky breaks and understand better 

how -- what you can learn from them. 

MR. ROEMER: So the fact that these principals are meeting 

does have an impact on bringing the CIA director, the FBI 

director and you and the President together to make decisions on 

a regulate basis. 

Thank you very much. 

MS. RENO: And you asked a question, how many times I met with 

the President. I don't know. 

MR. KEAN: I just have one question. I agree with you, this 

intelligence business that I've been getting to learn is very 

mysterious. And nobody teaches it, I guess, outside of this 

town. But -- and the FBI to me is particularly frustrating, 

because everything -- I know, everybody tells me it has 

wonderful, wonderful agents, and I know some of them, and they 

are wonderful people, totally dedicated. And there are totally 

dedicated people throughout the agency. And yet the agency 

doesn't work very well, and hasn't worked very well for a long 

time. And you all tried to reform it, and now we have another 

effort of reform going on. 

And I guess the big question: Everybody talks about the word 

"culture." Everyone says you've got to reform the culture of the 

FBI, otherwise it doesn't work -- it won't work in the new era 

we're now in. And I don't know how to change a culture, except 

that the present director is making a number of efforts. And the 

question comes, can any one man or one administration change a 

culture, or do they just wait you out, and when you leave, it 

goes back to being the same old agency that hadn't worked very 

well before? We can't afford that in this country. We can't 

afford to have an FBI that doesn't work. 

And so do you think one man or one administration, or if we 

keep on with this reforms, that this agency is going to start to 

work? 
67

MS. RENO: One of the ways you make it work is not to give up 

and not to change the boxes and shift things around so that we 

have to learn a whole new procedure and spend our time doing the 

procedure. It's -- I just -- I have great confidence in the 

director. 

I think he has built on what others have done, what Louis, 

what Dale Watson, what Bob Bryant and countless agents have 

done. I think he knows what needs to be done. I think we should 

back him up and not give up. 

And I think all of us who have been involved in the process 

care so much that it works, that we should our institutional 

knowledge, again in a thoughtful bipartisan way, to sit down and 

say, "This isn't politics in America. This is the national 

security. This is our nation's safety. Let's work together to 

come up with something that works." 

MR. KEAN: Thank you. 

Commissioner Lehman. 

MR. LEHMAN: Thank you. 

Welcome, General Reno. During the years that you were 

attorney general and before and after, right up till 9/11, there 

was an administration report issued every year called "Patterns 

of Global Terrorism." And in it, the counterterrorism policy was 

described as -- and I quote -- "to treat terrorists as 

criminals, to pursue them aggressively and to apply the rule of 

law." 

Now during your tenure at Justice, in various documents that 

dealt with terrorism, your priorities were laid out, number one, 

to obtain the successful prosecution of terrorists and, number 

two, to protect the rights of personal privacy. 

Were they accurate reflections of the priorities, or did the 

priorities shift as time went on? 

MS. RENO: The priorities shifted as -- almost immediately. I 

think Director Freeh made clear that we have got to start 

talking about how we prevent it and how we deter it and how we 

intervene with it. And I think that has been the important step. 

At the same time, it is important to understand what Director 

Freeh was saying: that one of the best ways to prevent it is to 
68

get hold of the information, follow it and make the arrest 

before it happens. 

MR. LEHMAN: But one of the problems of that perception --

because I'm well aware of the long lag between the changing of 

official propaganda, which continued right -- unchanged through 

three administrations, and the reality underlying it -- is that 

other parts of the government view it very differently. And I'd 

like to pursue, on a strictly unclassified basis, this issue of 

authorities to act, because we've spent a lot of time with the 

Pentagon and asking the question why we had eight years of --

following the '91 events and then the '93 events after that, to 

go after al Qaeda and Bin Ladin, and there was -- there were 

very, very few attempts. 

And the recent book by Mr. Coll and the articles in the 

Washington Post and the book "Ghost Wars" quote senior officials 

in CIA and the Pentagon, and indeed in the NSC, that -- as 

follows -- and the reason -- and I don't want to go outside of 

public documents. But the reason I'm quoting them is that we got 

a lot of classified testimony that is not inconsistent with it. 

(Reading.) Attorney General Reno and her Justice Department 

were deeply invested in law enforcement as the approach to 

terrorism. And this translated into, the Pentagon and CIA must 

make a good-faith effort to capture Osama for trial before 

targeting him as an individual. 

Again, just asking your personal view and not based on any 

classified information, is that an accurate reflection of your 

view --

MS. RENO: I think he could be captured or killed. 

MR. LEHMAN: Captured or killed. 

MS. RENO: Mm-hmm. 

MR. LEHMAN: This was translated by both agencies as having to 

mount a full-scale, good-faith, organizing logistics effort to 

capture him, and if he happened to get killed, fine, but you had 

to do that first. 

Is that an accurate reflection of it? 

MS. RENO: Again, my personal opinion was -- be that he could 

be captured or killed. 
69

MR. LEHMAN: Roger that. 

The other approach, apart from capturing or killing Osama, 

the Pentagon -- a number of senior Pentagon officials have 

written publicly, and I'll read from one of them. But again, 

it's not inconsistent with the classified testimony we have. And 

that is, quote -- talking to what they perceived as the Justice 

Department policies that we just talked about -- "If you declare 

terrorism a criminal activity, you take from the Defense 

Department any statutory authority to be the leader in 

responding." 

Whenever the White House, and they're talking about Clarke 

here, proposed using Special Forces against terrorists, it found 

itself facing, quote, "a band of lawyers at Justice defending 

the turf." They would assert that the Pentagon lacked authority 

to use force, and, quote, "lawyers in the DOD would concur." 

They argued that we have no statutory authority because this is 

essentially a criminal matter. 

Do you agree with that? 

MS. RENO: I have not heard that before, sir. 

MR. LEHMAN: Do you think that's a wrong interpretation and 

just making excuses by people who didn't want to go in -- put 

boots on the ground anyway? 

MS. RENO: I don't know what their motivation would be. 

MR. LEHMAN: Thank you very much. 

MR. KEAN: Senator Kerrey. 

MR. KERREY: Attorney General Reno, it's very nice to see you 

again. Thank you very much for coming and helping us try to 

figure this all out. 

Later this afternoon, Cofer Black, who was the head of the 

CTC for I think a couple of years, I think framed his whole 

thing very well when he says, I'm -- he's going to say it and 

I'm going to say what he's going to say; which is, "I come here 

to tell you what we did, what we tried to do and what we failed 

to do." And it's in the last area that I'd like to focus some 

attention, because I see three big failures, mistakes, that were 

made both in the Clinton administration and in the Bush 

administration. 
70

The first is the failure to give the Department of Defense a 

leading role in dealing with terrorism. It wasn't in PDD 62, and 

it wasn't changed until after 9/11. 

The second had to do with allowing al Qaeda to come inside 

the United States. I understand after '98 we knew that they were 

part of an Islamic army intending -- and we saw on the 7th of 

August they had tremendous capability. We continued to allow 

them to come to the United States; we didn't put a full-scale 

effort on with consular offices and INS and FBI and all sorts of 

other people in the United States to try to prevent them from 

coming into the United States. 

And the third is, I still can't get my head at the idea that 

we were not at a high state of alert at our airports on 11 

September. 

And I'd like to start with PDD 62, because I asked the same 

question to the President -- President Clinton and National 

Security Advisor Berger. Do you have any recollections of PDD 62 

and why the military was not given primary authority to wage the 

war against terrorism? 

MS. RENO: No, sir, I was not -- I'm not part of the Security 

Council, except if it's within my jurisdiction. And I don't 

recall that. 

MR. KERREY: The PDD would not have been circulated through 

the attorney general's office? 

MS. RENO: I think it was circulated through the attorney 

general's office with respect to legal issues. 

MR. KERREY: Talk to me about the second, then. The second 

item is also equally perplexing. I mean, al Qaeda wasn't just a 

group of terrorists, they were part of an Islamic army called 

the Jihad Against the People of the United States of America. 

Was there ever any discussions between you and the President, 

between you and the national security advisor, any internal 

discussions at all about saying, "We can't let this army inside 

the United States and we've got to make certain that we don't --

either through a consular office or INS or any other sort of 

point of weakness, allow them to penetrate our soil?" 

MS. RENO: My conversations with Doris Meissner, Commissioner 

of INS, were that she focused on the issue of how we build the 
71

database that gets the information with regards to terrorists. 

She found that working with the Joint Terrorism Task Forces and 

others were very important. But the problem was you had to get 

the information to her, and I think we failed there. 

MR. KERREY: But it seems to me, though, it had to occur at a 

Cabinet meeting with the President saying, "Look, this is an 

army; we've got to figure out how to keep that army out of the 

United States." Did that ever occur at any Cabinet meeting? 

MS. RENO: I don't recall any Cabinet meeting that addressed 

that. 

MR. KERREY: Well, help me with the last one, then. I didn't 

have time earlier to follow up, so in some ways this is not fair 

because I'm treating you as if you're Director Freeh because --

MS. RENO: It's quite fair. Go right ahead. 

MR. KERREY: -- I didn't like his answer. He basically hid 

behind the Gore report. I mean, we didn't need the 

recommendations of the Gore report to be at a higher state of 

alert than we were. I mean, we were -- we were at ease on the 

11th of September; we were not prepared for a hijacking. How did 

that happen, in your mind? I mean, you had significant 

authorities over the FBI and, you know, this thing could have 

happened in 2000 as easily as 2001. What did we miss? 

What happened that allowed us to be so relaxed on 11 

September in our airports?

MS. RENO: I wasn't in office, so I can't --

MR. KERREY: No, no. I know. But we were just as relaxed as 

you were going out of office as we were on 11 September. I mean, 

this attack could have easily happened on your watch. I mean, we 

were just as vulnerable while your were attorney general as we 

were when John Ashcroft was attorney general. 

MS. RENO: What I indicated to you and the Commission at the 

outset of this session were the issues that I think that we had 

to address at the Bureau. I gave my reasons for how they 

happened; what was necessary to address them; what had been 

done; what we could do to avoid it for the future. I think in 

the meantime -- and I would also stress something that's very 

important: I think people feel that because there is a strategy 

in place now, because there is a war, because we have come to a 
72

war footing, that we are somehow or another -- we don't have to 

have the heightened sense of urgency that we saw during the 

millennium, for example. Somebody said we couldn't have 

sustained the millennium pace. But if the situation is such that 

the reports that I've seen -- and I have not been briefed on 

them; it's again what I've read in the papers -- you have got to 

be prepared in the best of circumstances and with the best of 

strategy for the people to meet who are the principals and work 

together to get the job done. And if it take night after night, 

our soldiers fight night after night and day after day, and we 

ought to be able to do it here. 

MR. KERREY: Thank you. 

MR. KEAN: Commissioner Ben-Veniste. 

MR. BEN-VENISTE: Good afternoon, Attorney General Reno. Let 

me start out by making an observation that, with respect to my 

friend, Commissioner Lehman's questioning, that it is my 

understanding that the communication to CIA agents in the field 

with respect to kill or capture of Osama Bin Ladin was that they 

were told, pursuant to direction from the President, that they 

would be paid if they killed him or captured him, either way. 

Let me ask you about millennium. After Ressam is captured by 

the alert Customs agent, Diana Dean, for whom we all owe a debt 

of gratitude, there was follow-up, as you have indicated. And 

Diana Dean, like Agent Jose Melendez, who testified before us in 

an earlier hearing and who alertly prevented the entry into the 

United States at the Orlando port of entry, the airport --

prevented Mohamed al Khatani, who we now believe was to be the 

16th hijacker -- 20th hijacker, I'm sorry. 

The work that was done after Ressam had been arrested by the 

alert customs agent was something which you had begun to 

discuss, and I would like you to have the opportunity to tell us 

about the cooperation among agencies in the follow-up and how 

that may have resulted in the roll up of operations in Brooklyn, 

in Boston and elsewhere. 

MS. RENO: It was fascinating, Commissioner, to see how the 

pieces came together; working with authorities around the world, 

working with agents in New York, seeing how it came together; to 

see the exchange of information, to have people who trusted each 

other so that somebody from OIPR was talking to somebody at the 

CIA and another piece came together. People have talked about 

data as a -- like water coming out of a fire hydrant, and 
73

sometimes it's just that one precious piece that can make the 

difference. But it all seems to just open a door so that you can 

observe how something like this could happen. 

And it's based -- it was based on trust and the fact that the 

principals were there. They were exchanging information. They 

were sharing. I think that made an important difference. They 

were -- the principals were saying what about this. We need to 

get something translated. Well, get it to the Defense Department 

and they can get it translated. Cut through the red tape. Move 

it. I mean, we were in -- I put it to the equivalent of war. We 

do the best we can and the leaders should be there. 

MR. BEN-VENISTE: Let me ask you whether, in your briefing of 

the incoming attorney general, you elaborated on the terrorist 

threat from al Qaeda within the United States. Being mindful of 

the Millennium threat that you had just talked about; the bridge 

and tunnel threat, which had been interdicted and interrupted by 

the FBI as Director Freeh had talked about; our unsuccessful 

attempt to prevent the first bombing of the World Trade Center; 

did you brief Director (sic) Ashcroft on the presence of al 

Qaeda cells in the United States and the potential of terrorist 

activity in this country? 

MS. RENO: No, I didn't. I'd talk about it in terms of 

terrorism generally, threats to our national security generally, 

and the need to develop the capacity in the Bureau to collect 

the information, to manage it and to use it in the most 

organized way possible. 

MR. BEN-VENISTE: And let me ask you --

MR. KEAN: Last question. 

MR. BEN-VENISTE: -- a final question. You heard, perhaps, 

from Director Freeh -- there are others who have commented -- on 

the FISA court interpretation of the restrictions on the 

dissemination of information, and the fact that Director Freeh, 

a former federal judge, others in the Justice Department 

disagreed with the FISA court's narrow interpretation, which was 

ultimately overturned by the appellate court. Can you tell us 

why it was you did not seek to challenge the FISA court's 

interpretation during your term of office? 

MS. RENO: We were in a situation where it seemed to me we had 

need for FISAs at every moment. We were getting the FISAs. We 

felt like we were doing it the right way. 
74

We had, we thought, a good relationship with the court. And 

if we took an appeal, delay would occur, and we were worried 

about what effect it would have on the court. 

MR. BEN-VENISTE: Could you not have taken an appeal on some 

matter of less urgency or to try to get a clarification? 

MS. RENO: We looked sometimes for cases, but when you come to 

this crunch, it is usually the cases where you need the best 

facts to make the best law. 

MR. BEN-VENISTE: Thank you, Ms. Reno. 

MR. KEAN: Commissioner Fielding. 

MR. FIELDING: General Reno, thank you for being here. 

I'm very impressed -- I'm sure everybody's very impressed --

at the record that you've demonstrated of trying to acknowledge 

and fix issues within the FBI, as you perceived them, and tried 

to do from within, by trying to urge the director to deal with 

some of the deficiencies, as you saw them, and you just related 

those to us. 

Did you ever advise the White House or the national security 

advisor or the President of those concerns about the Bureau

and/or the director? 

MS. RENO: When you say "concerns about the director," I had a 

good working relationship with the director. I mean, we might 

have disagreements, but concerns -- that's -- it was common 

knowledge that one of the problems was that the Bureau sometimes 

didn't know what it had and that it didn't share the 

information. 

I think some of my frustration was urged on, if you will, by 

the National Security Council, and I told them what I was trying 

to do. I told them of the problems we had, the problems with 

respect to automation, and I don't recall ever briefing the 

President on it. 

MR. FIELDING: Thank you. I'm also very interested in the 

effectiveness of transitions, because it seems to be --

especially when it's a transition between different parties, 

there's a short period of time -- in the most recent one, even a 

shorter period of time -- and especially in areas of national 
75

security intelligence, there's a very vulnerable moment when the 

baton is handed off, in that period of time during a transition. 

And I think this is something that I hope that we will be 

looking at carefully as a commission. 

But in your dealings with the attorney general-designate or 

subsequently the attorney general, I was interested, you said 

that after he became attorney general, you met with him. Was 

that the first time you met with him to do any briefing or 

transitioning? 

MS. RENO: I had called him when he -- I heard that he was 

nominated, offering to brief him. He said that he would wait 

till he got confirmed, and when he got confirmed, he'd call me. 

MR. FIELDING: Okay. Now, during that meeting with him, did 

you ever express to him your concerns about the severe 

technology problems and deficits within the FBI? 

MS. RENO: I expressed to him my concerns, and I gave him 

copies of the memorandum which outlined my concerns. 

MR. FIELDING: And how about your concerns and the problems 

with "the wall," as we're calling it loosely, and legal 

authorities? 

MS. RENO: With respect to "the wall," I told him that there 

was an issue with respect to -- arising out of the Wen Ho Lee 

report, the attorney general's task force report that Mr. 

Bellows conducted at my direction, and that there were concerns 

it was important that the July -- the 1995 memorandum be 

updated. And Deputy Attorney General Larry Thompson updated in, 

I believe, August. I told him that I had not made a decision, 

because we could not reach consensus within the department, and 

that it was important that they take a look at it as a followup. And I didn't want to make a decision that didn't have more 

consensus attached to it for the new Administration that might 

want to pursue a different course. 

MR. FIELDING: And did you discuss with him any issues of the 

culture of the Bureau? 

MS. RENO: I don't recall talking about the culture of the 

Bureau. I talked about the need to share, the need to develop 

the capacity to share and to organize the information in an 

effective manner. 
76

MR. FIELDING: And was there any discussion about the 

personnel of the Bureau or any discussion about the retention or 

possible retention of Director Freeh? 

MS. RENO: No. 

MR. FIELDING: Okay. Thank you very much. Thank you, Mr. 

Chairman. 

MR. KEAN: Commissioner Thompson. 

MR. THOMPSON: Madame Attorney General, thank you for your 

testimony today. I think you were a bold and gutsy attorney 

general and stood up for what you believed and provided 

extraordinary leadership on many issues during your time. And I 

think the nation should be grateful for that. 

MS. RENO: Thank you, Governor. 

MR. THOMPSON: Two questions, if I might. In today's hearing 

and in past hearings, there seems to be an undercurrent or an

assumption or maybe even something more specific or direct than 

that that there is some kind of reporting relationship or ought 

to be some kind of reporting relationship between the attorney 

general of the United States and the national security advisor

or the director of the FBI and the national security advisor. 

The director of the FBI reports to you, as the attorney 

general. Is that correct? 

MS. RENO: That's correct. 

MR. THOMPSON: And you, as a confirmed Cabinet official, 

report to the President. Is that correct? 

MS. RENO: That's correct. 

MR. THOMPSON: And while there are undoubtedly many 

appropriate occasions for you to confer with the national 

security advisor or members of the NSC staff -- and you did, and 

other attorneys general have as well, and other directors of the 

FBI has as well -- the national security advisor is not some 

sort of super AG or super director. Is that correct? 

MS. RENO: That's correct. 
77

MR. THOMPSON: In your prepared testimony on page 5 -- I think 

it's worth repeating this few lines and because you weren't able 

to do it in your opening remarks. 

"There are simply no walls or restrictions on sharing the 

vast majority of counterterrorism information. There are no 

legal restrictions at all on the ability of the members of the 

intelligence community to share intelligence information with 

each other. With respect to sharing between intelligence 

investigators and criminal investigators, information learned as 

the result of a physical surveillance or from a confidential 

informant can be legally shared without restriction. While there 

were restrictions placed on information gathered by criminal 

investigators as the result of grand jury investigations or 

Title III wiretaps, in practice they did not prove to be a 

serious impediment since there was very little significant 

information that could not be shared." 

If you were to have used those words in a legal opinion 

directed to the members of the intelligence community and 

specifically to the members of the FBI and the CIA, according to 

a lot of what we have heard in public or in private, and 

certainly according to a lot of assumptions reported in the 

press, the members of the intelligence community would have been 

astounded. Or am I wrong about that? 

MS. RENO: I think some would have been astounded. I think 

it's, again, very important to understand, and I think I learned 

from this how important it is when you announce a policy, when 

you try to do something, that you make sure you train, you get 

feedback from people. And I think one of the things that I 

failed to do was to get feedback from them to understand exactly 

what their problems were with it, try to accommodate those 

interests, and proceed to ensure a full exchange of information. 

MR. THOMPSON: In your answer to an earlier question you said 

that -- I think I'm quoting you correctly, and please correct me 

if I'm wrong -- that you did not say something like this or talk 

about this subject near the close of your administration because 

you had failed to achieve "consensus within the department" on 

the issue. What did you mean by that, and why would you, as the 

attorney general of the United States, have needed consensus 

within the department before you issued your interpretation of 

what the law did or did not demand? 

MS. RENO: This obviously was a very sensitive issue, and to 

make a decision that I thought -- that might well -- that would 
78

be binding -- obviously, they could change it. I should have 

great confidence, it seems to me, before delivering to the next 

Administration a decision. I chose to let the next 

Administration make the decision because -- no, you're right: I 

don't have to have consensus, but I've got to have a pretty 

clear idea of what's the right thing to do. Harry Truman said 

doing the right thing is easy; trying to figure out what it is 

is much more difficult -- (laughter) --

MR. THOMPSON: (Laughs.) 

MS. RENO: -- and it was very difficult for me in that 

situation. 

MR. THOMPSON: Thank you, General. 

Thank you, Mr. Chairman. 

MR. KEAN: Thank you. 

I have one final question, just really a follow-up to 

Commissioner Fielding. You've been -- you're unique in a sense 

because you've been part of two transitions. 

It seems every year, it takes every new administration that 

much longer to get its key personnel appointed and confirmed. It 

involves White House procedures, it involves requirements of the 

United States Senate, it involves financial disclosures. But 

every year the pile gets higher, and we're looking now at the 

Bush transition, between your administration and their 

Administration, when it took six months or more for some of 

their key personnel to really get into place. 

You went through the earlier transition. Would you have any 

recommendations of any ways, particularly for key personnel such 

as in your department or in the national security area, to speed 

up these transitions so that administrations will be not left 

lacking key personnel at very important times for this country? 

MS. RENO: I think it is absolutely critical that this nation 

sit down and come together and let the President of the United 

States, whoever he or she is, have the people that they think 

can best represent the interests of the Administration that has 

just been elected and that continues to serve during the entire 

four years. It is extremely frustrating to try to implement 

policy, to try to deal with these critical issues, to try to 
79

understand all these problems and not have somebody that's 

confirmed. 

MR. KEAN: General, thank you. Thank you very much for your 

testimony. Thank you for your service. 

At this time the Commission will recess for one hour. 

Everybody should be back here, we'll start promptly at 1:30. 

Wait a second. The chair's been asked to announce that the 

Capitol Police have asked that as you leave the room for lunch, 

please take all packages or bags with you because unattended 

items will disappear. They'll be confiscated. 

Thank you. 

PANEL THREE OF THE TENTH HEARING OF THE NATIONAL COMMISSION ON 

TERRORIST ATTACKS UPON THE UNITED STATES RE: "LAW ENFORCEMENT 

AND THE INTELLIGENCE COMMUNITY" THOMAS H. KEAN, CHAIR; LEE H. 

HAMILTON, VICE CHAIR PHILIP ZELIKOW, EXECUTIVE DIRECTOR; 

CHRISTOPHER KOJM, DEPUTY STAFF DIRECTOR; AND BARBARA GREWE 

PRESENT STAFF STATEMENT: "THREATS AND RESPONSES IN 2001"

WITNESSES: J. COFER BLACK, FORMER DIRECTOR, CIA COUNTERTERRORISM 

CENTER; THOMAS J. PICKARD, FORMER ACTING FBI DIRECTOR

1:30 P.M. EDT, TUESDAY, APRIL 13, 2004 

MR. KEAN: (Strikes gavel.) I'd like to reconvene, if I could 

reconvene this hearing. And once again, we are going to begin 

with a statement prepared by the Commission staff. It's entitled 

"Threats and Responses in 2001." Philip Zelikow, Chris Kojm and 

Barbara Grewe of the Commission staff are going to present it. 

Mr. Zelikow. 

MR. ZELIKOW: Members of the Commission, with your help, your 

staff has developed preliminary findings regarding awareness of 

the threat of terrorist attack in the months leading up to 

September 11th, 2001, and some aspects of the immediate 

response. This report reflects the results of our work so far. 
80

We remain ready to revise our understanding as our work 

continues. 

The staff statement represents the collective effort of a 

number of members of our staff. Barbara Grewe, Michael Jacobson, 

Thomas Eldridge and Susan Ginsburg did much of the work 

reflected in this statement. 

We've built upon the substantial work carried out by the 

Joint Inquiry of the House and Senate Intelligence Committees. 

We've obtained excellent cooperation from the CIA, the FBI and 

the Office of Inspector General of the Department of Justice. 

They made significant material available for the preparation of 

this statement. 

I'd like to draw you now to page 2 of the statement, 

beginning with the spring of 2001, and turn the floor over to 

Chris Kojm, my deputy. 

MR. KOJM: In spring 2001, the level of reporting on terrorist 

threats and planned attacks began to increase dramatically, 

representing the most significant spike in activity since the 

millennium. At the end of March, the intelligence community 

disseminated a terrorist threat advisory indicating there was a 

heightened threat of Sunni extremist terrorist attacks against 

U.S. facilities, personnel and other interests in the coming 

weeks. 

In April and May 2001, the drumbeat of reporting increased. 

Articles presented to top officials contained headlines such as, 

quote, "Bin Ladin Planning Multiple Operations," close quote; 

quote, "Bin Ladin Public Profile May Presage Attack," close 

quote; quote, "Bin Ladin Network's Plans Advancing," close 

quote. 

By late May, there were reports of a hostage plot against 

Americans to force the release of prisoners, including Sheik 

Omar Abdel Rahman, "the blind sheik," who was serving a life 

sentence for his role in the 1993 plot to blow up sites in New 

York City. The reporting noted that the operatives may opt to 

hijack an aircraft or storm a U.S. embassy. 

The reporting also mentioned that Abu Zubaydah was planning 

an attack and expected to carry out more if things went well. 

The U.S. government redoubled efforts, ongoing since late 

1999, to capture Abu Zubaydah. National Counterterrorism 
81

Coordinator Clarke also called National Security Advisor 

Condoleezza Rice's attention to possible plots in Yemen and 

Italy and by an alleged cell in Canada that might be planning an 

attack against the United States. 

Reports similar to these were made available to President 

Bush in morning meetings with DCI Tenet, usually attended by 

Vice President Cheney and National Security Advisor Rice, as 

well. None of these reports mentioned that the attacks might 

occur in the United States. At the end of May, Counterterrorism 

Center Chief Cofer Black told Rice that the current threat level 

was a 7 on a scale of 10, as compared to an 8 during the 

Millennium. 

The threat reports surged again in June and July, reaching an 

even higher peak of urgency. A terrorist threat advisory in late 

June indicated that there was a high probability of near-term 

spectacular terrorist attacks resulting in numerous casualties. 

Headlines from intelligence reports were stark. Quote, "Bin 

Ladin threats are real," close quote. Quote, "Bin Ladin planning 

high-profile attacks," close quote. The intelligence reporting 

consistently described the upcoming attacks as occurring on a 

catastrophic level, indicating that they would cause the world 

to be in turmoil, consisting of possible multiple, but not 

necessarily simultaneous, attacks. A late June report stated 

that Bin Ladin operatives expect near-term attacks to have 

dramatic consequences of catastrophic proportion. 

Rice told us Clarke and his Counterterrorism and Security 

Group were the nerve center in coordinating responses but that 

principals were also involved. In addition to his daily meetings 

with President Bush and weekly meetings to go over other issues 

with National Security Advisor Rice, Tenet continued his regular 

meetings with Secretary Powell and Secretary Rumsfeld. The 

foreign policy principals talked on the phone every day on a 

variety of subjects, including the threat. 

The summer threat seemed to be focused on Saudi Arabia, 

Israel, Bahrain, Kuwait, Yemen and possibly Rome, but the danger 

could be anywhere, including a possible attack on the G-8 summit 

in Genoa, where air defense measures were taken. 

Disruption operations were launched involving 20 countries. 

Several terrorist operatives were detained by foreign 

governments, possibly disrupting operations in the Gulf and 

Italy and perhaps averting attacks against two or three U.S. 

embassies. U.S. armed forces in at least six countries were 
82

placed on higher alert. Units of the 5th Fleet were redeployed. 

Embassies were alerted. Vice President Cheney contacted Crown 

Prince Abdullah to get more Saudi help. DCI Tenet phoned or met 

with approximately 20 top security officials from other 

countries. 

Deputy National Security Advisor Hadley apparently called 

European counterparts. Clarke worked with senior officials in 

the Gulf. 

At Rice's request on July 5th, the CIA briefed Attorney 

General John Ashcroft on the al Qaeda threat, warning that a 

significant terrorist attack was imminent, and a strike could 

occur at any time. That same day officials from domestic 

agencies, including the Federal Aviation Administration, met 

with Clarke to discuss the current threat. Rice worked directly 

with Tenet on security issues for the G- 8 summit. In addition 

to the individual reports, on July 11th top officials received a 

summary recapitulating the mass of al Qaeda- related threat 

reporting on several continents. Tenet told us that in his 

world, quote, "the system was blinking red," close quote, and by 

late July it could not have been any worse. Tenet told us he 

felt that President Bush and other officials grasped the urgency 

of what they were being told. 

On July 27th Clarke informed Rice and Hadley that the spike 

in signals intelligence about a near-term attack had stopped. He 

urged keeping readiness high during the August vacation period, 

warning that another report suggested an attack had just been 

postponed for a few months. 

On August 3rd, the intelligence community issued a threat 

advisory warning that the threat of impending al Qaeda attacks 

would likely continue indefinitely. The advisory cited threats 

in the Arabian peninsula, Jordan, Israel and Europe, and 

suggested that al Qaeda was lying in wait and searching for gaps 

in security before moving forward with the planned attacks. 

During the spring and summer of 2001 President Bush had 

occasionally asked his briefers whether any of the threats 

pointed to the United States. Reflecting on these questions, the 

CIA decided to write a briefing article summarizing its 

understanding of this danger. The article, which the President

received on August 6th, is attached to the staff statement. 

Despite the large number of threats received, there were no 

specifics regarding time, place, method or target. Disruption 
83

efforts continued. An al Qaeda associate from North Africa 

connected to Abu Zubaydah was arrested in the United Arab 

Emirates on August 13th. He had apparently been planning an 

attack against the U.S. embassy in Paris. CIA analysts who have 

recently reviewed the threat search of the summer of 2001 told 

us they believe it may have been related to a separate stream of 

events. These threats may have been referring to the 9/11 

attack, the planned assassination of Northern Alliance leader 

Ahmad Shah Massoud, or other operations. 

In July 2001 the CSG alerted federal law enforcement agencies 

and asked the FAA to send out security advisories. Beginning on 

July 27th, the FAA issued several security directives to U.S. 

air carriers prior to September 11th. In addition, the FAA 

issued a number of general warnings about potential threats, 

primarily overseas, to civil aviation. 

None of these warnings required the implementation of 

additional aviation security measures. They urged air carriers 

to be alert. 

Although there was no credible evidence of an attack in the 

United States, Clarke told us, the CSG arranged for the CIA to 

brief senior intelligence and security officials from the 

domestic agencies. The head of counterterrorism at the FBI, Dale 

Watson, said he had many discussions about possible attacks with 

Cofer Black at the CIA. They had expected an attack on July 4th. 

Watson said he felt deeply that something was going to happen, 

but he told us the threat information was nebulous. He wished he 

had known more. He wished he had had, quote, "500 analysts 

looking at Osama Bin Ladin threat information instead of two." 

Close quote. 

Rice and Hadley told us that before September 11th they did 

not feel they had the job of handling domestic security. They 

felt Clarke and the CSG were the National Security Council's 

bridge between foreign and domestic threats. 

In late August working-level CIA and FBI officials realized 

that one or more al Qaeda operatives might be in the United 

States. We have found no evidence that this discovery was ever 

briefed to the CSG, to principals or to senior counterterrorism 

officials at the FBI or the CIA. Nor was the White House told 

about the arrest of Zacarias Moussaoui. 

We investigated awareness of the terrorist threat within the 

Department of Justice and the FBI during the spring and summer 
84

of 2001. Rice told us that she believed the FBI had tasked its 

56 U.S. field offices to increase surveillance of suspected 

terrorists and to reach out to informants who might have 

information about terrorist plots. An NSC document at the time 

describes such a tasking having occurred in late June, although 

it does not indicate whether the tasking was generated by the 

NSC or the FBI. 

At this point, we have found the following: On April 13th FBI 

headquarters alerted field offices to a heightened threat from 

al Qaeda against U.S. interests. The communication detailed the 

threats against U.S. interests abroad, but made no mention of 

any possible threat inside the United States. The field offices 

were asked to, quote, "task all resources, to include electronic 

databases and human sources, for any information pertaining to 

the current operational activities relating to Sunni extremism." 

Close quote. 

On July 2nd the FBI Counterterrorism Division sent a message 

to federal agencies, and state and local law enforcement 

agencies, that summarized the information regarding threats 

against U.S. interests from Bin Ladin. The message reported that 

there was an increased volume of threat reporting, indicating a 

potential for attacks against U.S. targets abroad from groups 

aligned with, or sympathetic to, Osama Bin Ladin. It further 

stated, quote, "the FBI has no information indicating a credible 

threat of terrorist attack in the United States." Close quote. 

However, it went on to emphasize that the possibility of attack 

in the United States could not be discounted. 

It also noted that the July 4th holiday might heighten the 

threats. The report asked the recipients to, quote, "exercise 

vigilance," close quote, and, quote, "report suspicious 

activities," close quote, to the FBI. 

Acting FBI Director Thomas Pickard recently told us that 

during his summer telephone calls with special agents in charge 

of each FBI field office he mentioned to each the heightened 

threat, among other subjects. He also told us that he had a 

conference call with all Special Agents in Charge on July 19th, 

in which one of the items he mentioned was that they needed to 

have their Evidence Response Teams ready to move at a moment's 

notice in case they needed to respond to an attack. 

We found in our field office visits last fall, however, that 

a number of FBI personnel, with the exception of those in the 

New York field office, did not recall a heightened sense of 
85

threat from al Qaeda within the United States in summer 2001. 

For example, an International Terrorism Squad supervisor in the 

Washington field office told us that he was neither aware in 

summer 2001 of an increased threat, nor did his squad take any 

special steps or actions. The special agent in charge of the 

Miami field office told us he did not learn of the high level of 

threat until after September 11. 

Pickard said in late June and through July he met with 

Attorney General Ashcroft once a week. He told us that although 

he initially briefed the attorney general regarding these 

threats, after two such briefings the attorney general told him 

he did not want to hear this information anymore. The Justice 

Department has informed us that Attorney General Ashcroft, his 

former deputy, and his chief of staff deny that the attorney 

general made any such statement to Pickard. 

Ashcroft told us that he asked Pickard whether there was 

intelligence about attacks in the United States. Pickard said he 

replied that he could not assure Ashcroft that there would be no 

attacks in the United States, although the reports of threats 

were related to overseas targets. Ashcroft said he therefore 

assumed that the FBI was doing what it needed to do. He 

acknowledged that in retrospect, this was a dangerous 

assumption. 

Prior to 9/11, neither Ashcroft nor his predecessors received 

a copy of the President's Daily Brief. After 9/11, Ashcroft 

began to receive portions of the brief that relate to 

counterterrorism. 

MS. GREWE: It is in this context that we return to the story 

of Mihdhar and Hazmi. While top officials in Washington were 

receiving and reacting to various threat reports, we need to 

step further down in the bureaucracy to trace a now significant 

story of how particular al Qaeda associates were addressed by 

lower-level officials. 

In Staff Statement No. 2, presented at our January hearing, 

we discussed the complex story of successes and failures in 

tracking and identifying hijackers Khalid al Mihdhar, Nawaf al

Hazmi, Nawaf's brother Salem al Hazmi, and the Cole bomber, 

Khallad. 

Those efforts had trailed off in January 2000. No one at CIA 

headquarters reacted to the March 2000 cable from Bangkok that 

someone named Nawaf al Hazmi had traveled to the United States. 
86

But there were three episodes in 2001 when the CIA and/or the 

FBI had apparent opportunities to refocus on the significance of 

Hazmi and Mihdhar and reinvigorate the search for them. As in 

the 2000 story, the details are complex. We turn to the first 

episode, which is in January 2001, the identification of 

Khallad. 

Almost one year after the original trail had been lost in 

Bangkok, the January 2000 rendezvous of suspected terrorists in 

Kuala Lumpur resurfaced. The FBI and the CIA learned from a 

conspirator in the U.S.S. Cole attack in Yemen that a person he 

knew as Khallad had helped direct the Cole bombing. One of the 

members of the FBI's investigative team in Yemen realized he had 

previously heard of Khallad from a joint FBI-CIA source who had 

said Khallad was close to Bin Ladin. Khallad was also linked to 

the East African bombings in 1998. The FBI agent obtained from a 

foreign government a photo of the person believed to have 

directed the Cole bombing. The joint source confirmed the man in 

that photograph was the same Khallad he had described. 

In December 2000, based on some analysis of information 

associated with Khalid al Mihdhar, the CIA's Bin Ladin station 

speculated that Khallad and Khalid al Mihdhar might be one and 

the same. So, the CIA asked that a Kuala Lumpur surveillance 

photo of Mihdhar be shown to the joint source who had already 

identified an official photograph of Khallad. 

In early January 2001 two photographs from the Kuala Lumpur 

meeting were shown to the joint source. One was a known 

photograph of Mihdhar; the other a photograph of an unknown 

subject. The joint source did not recognize Mihdhar, but he 

indicated he was 90 percent certain that the other individual 

was Khallad. This meant that Khallad and Mihdhar were two 

different people. But the fact that both had attended the 

meeting in Kuala Lumpur also meant there was a link between 

Khallad, a suspected leader in the Cole bombing, the Kuala 

Lumpur meeting, and Mihdhar. Despite this new information, we 

found no effort by the CIA to renew the long-abandoned search 

for Mihdhar or his travel companions. In addition, we found that 

the CIA did not notify the FBI of this identification until late 

August. 

DCI Tenet and Cofer Black testified before the Joint Inquiry

that the FBI had access to this information from the beginning. 

But based on extensive record, including documents that were not 

available to the CIA personnel who drafted that testimony, we 

conclude they were in error. The FBI's primary Cole
87

investigators had no knowledge of Khallad's possible 

participation in the Kuala Lumpur meeting until after the 

September 11 attacks. 

This is an example of how day-to-day gaps in information 

sharing can emerge even in a situation of goodwill on all sides. 

The information was from a joint FBI-CIA source. The source 

spoke essentially no English. The FBI person on the scene 

overseas did not speak the languages the source spoke. Due to 

travel and security issues, the amount of time spent with the 

source was necessarily kept short. As a result, the CIA officer 

usually did not simultaneously translate either the questions or 

the answers for his accompanying FBI colleague and friend. 

For interviews without such simultaneous translation, the FBI 

agent on the scene received copies of the reports that the CIA 

disseminated to other agencies, but he was not given access to 

the CIA's internal operational traffic that contained more 

detail. The information regarding the January 2001 

identification of Khallad was only reported in operational 

traffic, to which the relevant FBI investigators did not have 

access. 

The CIA officer does not recall this particular 

identification and thus cannot say why it was not shared with 

his FBI colleague. But he may have misunderstood the possible 

significance of the new identification. 

Mihdhar left the United States in June 2000. It is possible 

that if in January 2001, agencies had resumed their search for 

him or placed him on the TIPOFF watchlist, they might have found 

him before or at the time Mihdhar applied for a new visa in June 

2001 or they might have been alerted to him when he returned to 

the United States the following month. We cannot know. 

The second opportunity is in the spring of 2001, looking 

again at Kuala Lumpur. By mid-May 2001, as the threat reports 

were surging again, a CIA official detailed to the International 

Terrorism Operations Section at the FBI wondered where the

attacks might occur. We will call him John. John recalled the 

Kuala Lumpur travel of Mihdhar and his associates around the 

Millennium. He searched the CIA's databases for information 

regarding the travel. On May 15th, he and another official at 

CIA reexamined many of the old cables from early 2000, including 

the information that Mihdhar had a U.S. visa and that Hazmi had 

come to Los Angeles on January 15, 2000. 
88

The CIA official who reviewed the cables took no action 

regarding these cables. She cannot recall this work. John, 

however, began a lengthy exchange with a CIA analyst to figure 

out what these cables meant. He recognized the relationship to 

the bombing case, and he was aware that someone had identified 

Khallad in one of the surveillance photographs from the Malaysia 

meetings. He concluded that something bad was definitely up. 

Despite the U.S. links evident in this traffic, John did not 

raise that aspect with his FBI counterparts. He was focused on 

Malaysia. 

John's focus on the oversea target area might be understood 

from his description of the CIA as an agency that tended to play 

a zone defense. In contrast, he said, the FBI tends to play manto-man. Desk officers at the CIA's Bin Ladin station did not 

have cases in the same sense as an FBI agent, who works 

something beginning to end. Thus, when the trail went cold after 

the Kuala Lumpur meeting in January 2000, the desk officer moved 

on to different things. By the time the March 2000 cable arrived 

with information that one of the travelers had flown to Los 

Angeles, the case officer was not responsible for following up 

on that information. While several individuals at the Ladin

station opened the cable when it arrived in March 2000, it was 

no one's concern and no action was taken. 

We discussed some of the management issues raised by this in 

January in Staff Statement No. 2. The CIA's zone defense 

concentrated on where, not who. Had its information been shared 

with the FBI, a combination of the CIA's zone defense and the 

FBI's man-to-man approach might have been far more productive. 

The third opportunity is in August 2001, when the search for 

Hazmi and Mihdhar begins and fails. During the summer of 2001 

John asked an FBI official detailed to the CIA to review all of 

the Kuala Lumpur materials one more time. We will call her Mary. 

He asked her to do the research in her free time. She began her 

work on July 24th. That day she found the cable reporting that 

Mihdhar had a visa to the United States. A week later she found 

the cable reporting that Mihdhar's visa application -- what was 

later discovered to be his first application -- listed New York 

as his destination. On August 21st she located the March 2000 

cable that "noted with interest" that Hazmi had flown to Los 

Angeles in January 2000. She grasped the significance of this 

information. 

Mary and an FBI analyst working the case, whom we will call 

Jane, promptly met with an INS representative at FBI 
89

headquarters. On August 22nd INS told them that Mihdhar had 

entered the United States on January 15, 2000, and again on July 

4th, 2001. Jane and Mary also learned that there was no record 

that Hazmi had left since January 2000, but they were not 

certain if he was still here and assumed that he had left with 

Mihdhar in June 2000. They decided that if Mihdhar was in the 

United States, he should be found. 

They divided up the work. Mary asked the Bin Ladin station to 

draft a cable requesting that Mihdhar and Hazmi be put on the 

TIPOFF watchlist. 

Jane took responsibility for the search effort inside the 

United States. As the information indicated that Mihdhar had 

last arrived in New York, and this was determined to be related 

to the Bin Ladin case in New York, she began drafting a lead for 

the FBI's New York field office. 

She called an agent in New York to give him a heads-up on the 

matter, but her draft lead was not sent until August 28th. Her 

e-mail told the New York agent that she wanted to get him 

started on this as soon as possible, but she labeled the lead as 

"routine." A "routine" designation informs the receiving office 

it has 30 days to respond to the lead. 

The agent who received the lead forwarded it to his squad 

supervisor. That same day the supervisor forwarded the lead to 

an intelligence agent to open an intelligence case. He also sent 

it to the Cole case agents and an agent who had spent 

significant time in Malaysia searching for another Khalid, 

Khalid Sheikh Mohamad. 

The suggested goal of the investigation was to locate 

Mihdhar, determine his contacts and reasons for being in the 

United States, and possibly conduct an interview. 

Before sending the lead, Jane had discussed it with John, the 

CIA official on detail to the FBI, and with the acting head of 

the FBI's Bin Ladin Unit. The discussion apparently was limited 

to whether the search should be classified as an intelligence 

investigation or as a criminal one, a legally important 

distinction for reasons we explained earlier today in Staff 

Statement Number 9. Neither of these individuals apparently 

disagreed with the analyst's proposed plan. No one apparently 

felt they needed to inform higher levels of management in either 

the FBI or the CIA about the case. 
90

One of the Cole case agents read the lead with interest and 

contacted Jane to obtain more information. Jane took the 

position, however, that because the agent was a designated 

"criminal" agent, the "wall" kept him from participating in any 

search for Mihdhar. In fact, she felt he had to destroy his copy 

of the lead because it contained information she believed could 

not be shared with any criminal agents. 

The Joint Inquiry covered the details of their heated 

exchanges, and we will not repeat them here. 

The result was that criminal agents who were knowledgeable 

about the Cole and experienced with criminal investigative 

techniques, including finding suspects and possible criminal 

charges, were excluded from the search. 

Many witnesses have suggested that even if Mihdhar had been 

found, there was nothing the agents could have done except 

follow him onto the plane. We believe this is incorrect. Both 

Hazmi and Mihdhar could have been held for various immigration 

violations or as material witnesses in the Cole bombing case. 

Investigation or interrogation of these individuals and their 

travel and financial activities also may have yielded evidence 

of connections to other participants in the 9/11 plot. In any 

case, the opportunity did not arise. 

Notably, the lead did not draw any connections between the 

threat reporting that had been coming in for months and the 

presence of two possible al Qaeda operatives in the United 

States. 

Moreover, there is no evidence that the issue was 

substantively discussed at any level above a deputy chief of a 

section within the Counterterrorism Division at FBI 

headquarters. The search was assigned to one FBI agent for whom 

this was his very first counterterrorism lead. By the terms of 

the lead, he was given 30 days to open an intelligence case and 

make some unspecified efforts to locate Mihdhar. He started the 

process a week later. He checked local New York indices for 

criminal record and driver's license information and checked the 

hotel listed on Mihdhar's U.S. entry form. On September 11 the 

agent sent a lead to Los Angeles based on the fact that Mihdhar 

had initially arrived in Los Angeles in January 2000. Time had 

run out on the search. 

We want to briefly mention two other incidents in the summer 

of 2001. The first, the Phoenix Memo. 
91

The Phoenix Memo was investigated at length by the Joint 

Inquiry. We recap it briefly in the statement that's provided to 

you. I just want to mention now -- as its author told us, the 

Phoenix Memo was not an alert about suicide pilots. His worry 

was more about a Pan Am 103 scenario in which explosives were 

placed on an aircraft. The memo's references to aviation 

training were broad, including electronics and aircraft 

maintenance. 

And lastly, Moussaoui. On August 15, 2001, the Minneapolis 

FBI field office initiated an intelligence investigation on 

Zacarias Moussaoui. He had entered the country on February 23, 

2001, and began flight lessons at Airman Flight School in 

Oklahoma City. He began flight training at the Pan American 

flight training school in Minneapolis on August 13. Moussaoui 

had none of the usual qualifications for flight training on Pan 

Am's Boeing 747 flight simulators. Contrary to popular belief, 

Moussaoui did not say he was not interested in learning how to 

take off or land. Instead, he stood out because, with little 

knowledge of flying, he wanted to learn how to take off and land 

a Boeing 747. 

The FBI agent who handled the case in conjunction with the 

INS representative on the Minneapolis Joint Terrorism Task Force 

suspected Moussaoui of wanting to hijack planes. Because 

Moussaoui was a French national who had overstayed his visa, he 

was detained by the INS. 

The FBI agent sent a summary of his investigation to FBI 

headquarters on August 18. In his message he requested 

assistance from the FBI field office in Oklahoma City and from 

the FBI legal attaché in Paris. Each of these offices responded 

quickly. By August 24 the Minneapolis agent had also contacted a

detailee from the FBI and a CIA analyst at the Counterterrorist 

Center about the case. DCI Tenet was briefed about the Moussaoui 

case. He told us that no connection to al Qaeda was apparent to 

him before 9/11. 

Moussaoui had lived in London, so the Minneapolis agent also 

requested assistance from the legal attaché in London. 

The legal attaché promptly prepared a written request of the 

British government for information concerning Moussaoui and 

hand-delivered the request on August 21st. He informed the 

British of developments in the case on September 4th. The case, 

although handled expeditiously at the American end, was not 

handled by the British as a priority amid a large number of 
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other terrorist-related inquiries. On September 11th, after the 

attacks, the legal attaché renewed his request for information. 

After 9/11 the British government, in response to U.S. 

requests, supplied some basic biographical information about 

Moussaoui. The British government has informed us that it also 

tasked intelligence collection facilities for information 

potentially relating to Moussaoui. On September 13, the British 

received new, sensitive intelligence that Moussaoui had attended 

an al Qaeda training camp in Afghanistan. It passed this 

intelligence to the United States that same day. 

Had this information been available in late August 2001, the 

Moussaoui case would almost certainly have received intense and 

much higher-level attention. Prior to 9/11, there was a 

continuing dispute between FBI agents in Minneapolis and 

supervisors at headquarters about whether evidence had been 

sufficient to seek a FISA warrant to search Moussaoui's computer 

hard drive and belongings. After 9/11, the FBI learned that 

Millennium terrorist Ressam, who was cooperating with 

investigators, could have recognized Moussaoui from the Afghan 

camps. 

Either the British information or the Ressam identification 

would have broken that logjam. A maximum U.S. effort to 

investigate Moussaoui could conceivably have unearthed his 

connections to the Hamburg cell, though this might have required 

an extensive effort with help from foreign governments. The 

publicity about the threat also might have disrupted the plot, 

but this would have been a race against time. 

MR. ZELIKOW: To close up, commissioners, the remainder of the 

statement covers three other topics, which we will not try to 

deliver orally here. The first of those is information issues. 

We itemize in our statement five information issues that are 

lessons that we have gathered from the story. 

Second, we offer a preliminary finding on post-9/11 events. 

We offer our preliminary findings on the flights of Saudi 

nationals leaving the United States after 9/11, which has been a 

focus of some public attention. 

And finally, as part of the issues of "Threat and Response in 

2001," we describe some immigration law-enforcement initiatives 

that were undertaken by Attorney General Ashcroft with the FBI, 

and at times with other Cabinet departments, to try to disrupt 

terrorist activities using immigration laws after 9/11. 
93

That material is available in our staff statements. And with 

that, we conclude. 

(Pause for change of panel.) 

MR. KEAN: We will now hear from a panel of two witnesses: Mr. 

Thomas Pickard, who served as acting director of the Federal 

Bureau of Investigation during 2001, and Ambassador Cofer Black, 

who served as director of the Counterterrorism Center at Central 

Intelligence Agency from 1999 until 2002. 

Gentlemen, would you please rise and raise your right hand? 

Do you swear or affirm to tell the truth, the whole truth and 

nothing but the truth? 

MR. PICKARD: I do. 

MR. BLACK: I do. 

MR. KEAN: Thank you. Please be seated. 

Gentlemen, your prepared statements will be entered into the 

record in full, so we'd request that you summarize your opening 

statements. And I guess we'll begin with Mr. Pickard. 

MR. PICKARD: Thank you, Governor. 

I'm here today, at your invitation, to answer your questions 

as directly as I am able, based upon what I can recall. 

Clearly, nothing I can say will ease the suffering of those 

who lost friends and loved ones on September 11th, nor can I 

ease the torment for all who witnessed the horrific events of 

that day. 

Among the 3,000 who lost their lives that day were New York 

FBI agent Lenny Hatton and recently retired FBI agent John 

O'Neill, both of whom died trying to help the victims. Because 

of these tragic losses, I hope that I can contribute in some 

small way to helping America understand how this happened and 

what needs to be done to better protect us in the future. 

I know many, including myself, who over and over relive the 

days prior to 9/11, searching both our memories and our actions 

for missed chances that may have averted 9/11. 
94

I know of an individual who was in the World Trade Center on 

9/11 and survived. This individual was tormented by the actions 

he, upon reflection, thought he should have taken. He told a 

number of people about his thoughts. Some months later, for this 

and probably other reasons, life became too difficult for him, 

and he took his life. 

No one knows the torment this event must have given him to 

take this tragic step. 

Those of us who were in the FBI at the time are no exception. 

No one knows how deeply many employees of the FBI are troubled 

by the haunting events leading up to that day. 

In my view, the tragedy of 9/11 clearly demonstrates the high 

cost for the collective failure of the U.S. government to 

penetrate the inner-workings of al Qaeda or to deal with 

terrorism, as it was then and is now a war against the United 

States intended to inflict as many American casualties as 

possible. For many and very deep -- for many complex reasons, we 

did not develop the necessary intelligence, either through our 

own resources or through foreign resources, to sufficiently 

understand and react to their planning, communications, control 

and capacity to do us harm. 

I was the acting director of the FBI in the summer of 2001. 

The intelligence and the experience I had available to me at the 

time were what I acted upon. As I recall, during the period 

January to September 2001, the FBI received over 1,000 threats. 

Many of these threats had great specificity and others were very 

general in nature. All were taken seriously, but the volume was 

daunting. The increase in the chatter was by far the most 

serious, but it was also the most difficult to deal with. There 

was no specificity as to what, where and when. We knew the who, 

but only that it was al Qaeda. 

I had regular conversations with the director of CIA and his 

deputy, and the attorney general and his deputy about the 

threats we were receiving and to learn if there was anything 

more that would help us understand the fragmentary information 

we had. The only news I received was that the chatter subsided 

in August 2001. Further, I personally spoke both collectively 

and individually with each of the special agents in charge of 

the FBI's 56 field offices and with the assistant directors at 

FBI headquarters about what we knew and what we should be doing. 

Most of what I heard pointed overseas. For example, at the 

recommendation of the assistant director of New York and the 
95

head of counterterrorism, I removed the agents from Yemen due to 

the threat level and the chatter. 

During the summer we continued to pursue our investigations 

of the bombings of the African embassies and the U.S.S. Cole. 

These were not just investigations to bring people responsible 

to justice, but they were also giving us valuable intelligence 

on al Qaeda. These investigations did more than advance the 

prosecution of these matters; they provided some of the best 

intelligence the U.S. government possessed about al Qaeda. 

Many of those arrested and brought back to the United States 

started to cooperate with the FBI. They provided us not only 

information about the bombings, but also became valuable 

resources in identifying al Qaeda members to U.S. intelligence. 

They gave us unique insights into al Qaeda's command and 

control. We also exploited their pocket letter, cell phones, 

calling cards, credit cards and hotel registrations to links to 

other members. The agents were tireless in pursuing these bits 

and pieces of information. The New York office of the FBI, the 

Joint Terrorism Task Force and the U.S. Attorneys office in the 

Southern District of New York had become very knowledgeable and 

adept at exploiting these investigations. 

The FBI also had Foreign Intelligence Surveillance Act 

coverage on individuals in the United States, which has recently 

been discussed. This too gave us links to other possible members 

of al Qaeda. These investigations and coverages were the direct 

result of FBI investigations as well as coming from the United 

States and foreign intelligence communities. 

None of what we knew or learned pointed to what was about to 

happen on 9/11. To the contrary, all of these steps were not 

enough, given what we had learned about the 19 hijackers since 

September 11. 

The plot was hatched probably in Afghanistan, it was honed in 

Germany, and it was financed in the Middle East. Each of the 

hijackers were selected to ensure that he could come and go into 

the United States without attracting attention, not a difficult 

thing to do with our open and overwhelmed borders. They did not 

receive support knowingly from anyone in the United States, nor 

did they contact known al Qaeda sympathizers in the United 

States. They utilized publicly accessible Internet connections, 

prepaid calling cards to communicate and to escape detection by 

U.S. authorities. 
96

These 19 acted flawlessly in their planning and execution. 

They successfully exploited every weakness, from our borders to 

our cockpit doors. 

The members of al Qaeda are a formidable enemy. I have 

personally met with Ramzi Yousef, the mastermind of the 1993 

World Trade Center attack. He is poised, articulate, well 

educated. He speaks English with a British accent, as well as 

six other languages. He has degrees in chemistry and electrical 

engineering. And in 1995, he utilized a laptop computer with an 

encryption program on it. 

I have also led two separate teams overseas to return Eyad 

Ismael Najim, who drove the van into the World Trade Center in 

1993, and Wali Khan, who was part of the Manila air plot, back 

to the United States to stand trial. Both were fairly welleducated, poised young men dedicated to a jihad in America. 

I have used the word "enemy" to describe them because that's 

what they are. They are dedicated terrorists willing to even 

commit suicide for their beliefs. The camps in Afghanistan and 

elsewhere were graduating thousands like them, who are educated, 

committed and even computer savvy. Al Qaeda was turning out five 

times more graduates from their camps than the CIA and the FBI 

were graduating from their training schools. I could only 

utilize handcuffs on them. President Bush and the U.S. military 

gave them something more effective: bombs, bullets and bayonets. 

Over the last week, I have interacted again with the men and 

women of the FBI. Director Mueller and his staff have a 

formidable challenge in preventing the next act of terrorism. Al 

Qaeda just has to get it right once, but the FBI will have to 

get it right every time. 

I'd like to briefly touch on the issue of the walls, and I 

think it's summarized best by one of the New York agents who I 

knew. 

And his quote was, "create enough walls and you build a 

maze." It hampered greatly our efforts to utilize the FISA 

process to penetrate these cells, and I would recommend to this 

commission that they add courts and judges outside Washington, 

D.C. to speed up the FISA process to help and make sure this 

works much more effectively. 

Dick Clarke before this commission stated that he -- if he 

had known about these two individuals, al Mihdhar and al Nawazi, 
97

he would have put them on "America's Most Wanted." If we knew 

what we knew now about them, I agree and I could have called 

John Walsh and he would have ran a special about them. However, 

on September 10th all we knew was that they were to be put on 

the visa watchlist and we should attempt to locate them. The FBI 

did not know whether they had departed the United States, and we 

certainly had no information -- none -- that they were here to 

carry out an act of terrorism. 

In closing, I have met with or spoken by telephone to a 

number of FBI employees and some who have moved on from the FBI. 

Many have asked me to tell the families of the victims that each 

day the FBI family suffers with you the memory of 9/11. 

I am now prepared to answer your questions, and later the 

families' questions after this hearing. I've made arrangements 

with the FBI to utilize those services after this meeting; not 

directly, but later. 

I have not made myself available to the media or anyone else 

prior to the meeting with this commission because I believe you 

have a solemn, non-political responsibility to find out what 

happened on September 11 and to provide recommendations to

protect America in the future. 

Thank you, Mr. Chairman. 

MR. KEAN: Thank you, Mr. Pickard. 

Mr. Black, sir. 

MR. BLACK: Good afternoon. My name's Cofer Black. From 1999 

until 2002 I was the director of the DCI's counterterrorist 

center. We call my old unit the CTC. It is in that capacity that 

I am here today to testify. I promise to try and be brief in my 

opening remarks so we can get to your questions. 

I'm here today to tell you and the American people what we 

did, what we tried to do, and where we fell short in order to 

help this commission and the nation understand what happened and 

encourage the kind of discussion that will help us avoid a 

similar tragedy in the future. And believe me, our enemies are 

still out there plotting to attack us and our allies in the war 

on terrorism. These attacks could take the form of spectaculars 

like 9/11 or could be smaller but still effective operations 

that are easier to mount, like what happened in Madrid. 
98

I'm not here to testify as a part of a political process, or

to create another political fire storm over some perceived 

allegation of negligence or inattention or error by somebody 

else. Too often in this election year the effort you are engaged 

in has revolved around what people in this country perceive as 

partisan issues. I do not want to engage in an exercise that 

reflects that kind of unproductive exchange. Frankly, what 

mattered to me and the men and women I led in the 

counterterrorist center did not depend on the flavor of the 

Administration, but rather was driven by what WE thought needed 

to get done and our attempts to protect American citizens, 

property and interests. 

In order to understand the threats that emerged during 2001 

and our response to those threats, I want to briefly provide 

some context. A lot of this activity is highly classified, so I 

will provide an overview. 

I want to begin by describing our overall strategy. We have 

been systematically attempting to counter the terrorist threat 

since William Casey established CTC in 1986. Over the following 

15 years we saw the nature of that threat evolve. Our approach 

to dealing with the threat has also evolved. By the time that I 

arrived in the summer of 1999 CTC was ready to take the next 

step in its evolution to embark on a new, more offensive 

strategy to deal with the terrorist problem. Our plan had a 

number of elements. 

First, because terrorism is a global problem, we needed to 

build a global coalition to work with us to fight the threat. We 

set out to engage with every liaison service worldwide that was 

willing to work with us. In some cases we needed to build up the 

capabilities of those services, and we did. 

Second, we worked to actively engage those services that have 

regional or semi-global capacity. Most importantly, we worked to 

develop our own operations to advance U.S. counterterrorism 

objectives by penetrating terrorist safe havens and collecting 

intelligence that would both inform policy and enable our own 

operations. Although this was our global strategy, the single 

issue that overwhelmingly occupied our attention was Osama Bin

Ladin and al Qaeda. The plan we developed to deal with al Qaeda 

involved disrupting UBL operations. This depended heavily on 

developing sources of both human and technical intelligence that 

could give us insights into his plans at the tactical level. 

This is easy to say, but hard to accomplish. 
99

Channeling and capturing UBL. This required us to know where 

UBL was, to develop capture teams, and to find a way to have 

these two streams of activities intersect at a specific time, 

all from a distance. 

Psychological operations. Psychological operations are always 

hard to conduct and hard to measure. But we were trying to drive 

UBL to areas that might be easier for us to operate in at the 

same time that we are disrupting his operations. 

One of our goals was to convince the Taliban that Osama Bin

Ladin was a liability. 

UBL's lieutenants. Al Qaeda is not a one-person show. At the 

same time we were pursuing UBL, we were also working to develop 

intelligence on his chief lieutenants in order to conduct 

operations against them. 

Technical operations. In order to improve our intelligence 

collection, we were working with a variety of partners outside 

of CTC to develop innovative approaches to dealing with a denied 

area like Afghanistan. 

We continued to refine our approach throughout 2000 and into 

2001, pushing forward with those initiatives that seemed to have 

promise. But this was a hard and a long-term effort. There were 

no quick fixes short of invading Afghanistan, and that was 

determined not to be an option prior to 9/11. 

Let me also set straight the record on the Predator. We were 

interested in a UAV program to improve our operations in 

Afghanistan as far back as 1999. While I had to live within my 

financial resources, CTC was interested in and pushed to develop 

Predator capabilities. I was convinced that we needed these 

capabilities and would be able to put them to good use. That 

said, wanting something does not translate into having it ready 

to deploy. There were very serious debates over how to proceed, 

and I object to any notion that CTC -- that I either did not 

want to develop the capability or that we tried to kill it. 

2001 started out with many distinct terrorist threats that 

required our attention. Again, this is a highly classified area. 

I'll attempt to summarize what I can tell you. 

CTC was: continuing to work with the FBI on the U.S.S. Cole

attack; working to follow through on a major, multi-country 

takedown of terrorist cells in Southeast Asia; responding to a 
100

hostage situation in Ecuador; dealing with another hostage 

crises in the Philippines. 

Overshadowing all this was the rising volume of threat 

reporting. By the summer of 2001 we were seeing an increased 

amount of so-called "chatter" alluding to a massive terrorist 

strike. We were receiving this intelligence not only from our 

own sources, but also from liaison. Human intelligence was 

providing the same kinds of insights. Disruption efforts and 

detentions were also corroborating our concerns about a coming 

attack. 

None of this, unfortunately, specified method, time or place. 

Where we had clues, it looked like planning was underway for an 

attack in the Middle East or Europe. 

At the same time, we were working on two tracks -- to go 

after al Qaeda, and to disrupt the terrorist attacks. 

In going after the organization, we were doing several things 

simultaneously. First, we had to penetrate the threat. To do 

this we needed to penetrate both the al Qaeda safe haven in 

Afghanistan and the organization itself to collect enhanced 

human and technical intelligence on its activities and to 

understand it well enough to conduct offensive operations 

against it. 

Second, we had to look for opportunities to take down al 

Qaeda cells. With the intelligence we collected, we worked to 

create plans to disrupt or degrade al Qaeda. Make no mistake; 

this was a hard mission with a low probability for success in 

the near term. 

Finally, we were developing new capabilities to enable us to 

penetrate and take down the organization. These ranged from 

Predator to developing new approaches for going after the Afghan 

safe haven by working with groups within the country and with 

any cooperative service in neighboring countries. A number of 

these initiatives were also included in the so-called December 

2000 "Blue Sky" memo and in follow-on discussions in the CSG 

process that have been previously discussed by others and in 

your staff statements. 

In order to disrupt, we approached almost two dozen 

cooperative services to go after Osama Bin Ladin-related targets 

worldwide. At best, we were hoping to delay any attack to buy 

ourselves more time to find out what was planned. We were 
101

looking for every opportunity to go on the offensive against al 

Qaeda. 

Where we did not have enough information, we warned. We 

produced CIA and community analysis that examined the heightened 

threat situation. Your staff statement this morning ran into 

titles of a number of these documents. 

More broadly, I also want to emphasize that CTC and the 

intelligence community produced significant strategic analysis 

that examined the growing threat from international jihadist 

networks and al Qaeda. I believe that the record shows that the 

U.S. government understood the nature of the threat. This 

understanding was the result of a range of products we produced 

or contributed to, including: Personal interaction via 

participation in the Counterterrorism Security Group; periodic 

stand-back assessments on UBL and Sunni extremist-related 

topics; contributing to the annual "Patterns of Global 

Terrorism". 

And outside the executive branch, activities such as the 

DCI's worldwide threat briefings, support for the Bremer 

Commission on terrorism, and briefings for the HPSCI terrorism 

subcommittee. 

But ultimately, we were not able to stop what happened on

9/11, despite our actions and our warnings. 

I promised to be brief, so I'll close with a final thought. 

What I've been largely talking about is what the 

Counterterrorism Center can and has done. But ultimately, what 

we at the agency do is deal with the symptoms of terrorism at a 

tactical level. As long as there are people who are not happy 

with their lot in life, as long as the United States is 

perceived to somehow be the cause of this unhappiness, there 

will be terrorism. No matter how many plots we uncover and 

disrupt, no matter how many terrorist organizations we degrade 

or destroy, another individual or group will rise to take their 

place. 

Mr. Chairman, we need to remind the American public of this 

reality. Those like the families who have lived through the 

horrors of 9/11 will never forget, but I fear sometimes that the 

rest of the country is losing sight of the long and hard way 

ahead. 
102

At the more strategic level, the only way to address 

terrorism is to deal with the issues that create terrorism, to

resolve them where possible, and where that's not possible, to 

ensure that there is an alternative to violence. And that is not 

something that the counterterrorism center or CIA can do. That 

is a mission for the broader United States government. 

Prior to this hearing I contacted former counterterrorism 

center colleagues at our headquarters here in Virginia and those 

that are overseas and now in harm's way. I asked them the 

question, what am I going to tell these people? It should not be 

my words alone, but it should be ours. And hauntingly, all of my 

CTC friends independently said exactly the same thing, they used 

the same words, and they said them in the same order. We are 

profoundly sorry. We did all we could. We did our best. And they 

said, Make them understand how few we were and what we had to 

deal with. The shortage of money and people seriously hurt our 

operations and analysis. 

In CTC we heard our director's call. I've heard some people 

say this country wasn't at war. I want to tell you, Mr. 

Chairman, the counterterrorism center was at war, we conducted 

ourselves at war. And that's the way it is. We did the best we 

could under the law and with the resources provided and under 

our defined rules of engagement. 

Appreciating this, I want to say it's my honor to take full 

responsibility for the counterterrorism center, for those men 

and women that served this country so well. I'm proud to do it. 

I want to thank you for the opportunity to be here, for the 

opportunity to speak on behalf of all those who served in CTC. I 

want to thank you for the opportunity to support what even I am 

beginning to realize is the important work of this commission. 

Thank you. 

MR. KEAN: Thank you, ambassador. 

Secretary Lehman. 

MR. LEHMAN: Thank you, and welcome, Mr. Pickard, Mr. Black. 

The reason you're both here and the reason your testimony 

carries special weight with us is that both of you are career 

professionals, that both of you are seen as role models in your 

particular professional fields. And your prepared statements

reflect that. And please understand that the questions I am 
103

posing to you have nothing to do with the blame game or fingerpointing. Our high responsibility is to draw the right lessons 

and to make real achievable recommendations for change. 

So that's what we need to find out. 

Now let's start with the Presidential Daily Briefing that was 

just released at our request over the weekend. To me the most 

significant sentence in that PDB is that, after summarizing the 

history of the reporting from '98 forward, essentially, of 

growing alarm and threat in the intelligence community, the 

summary to the President was, quote, "We have not been able to 

corroborate some of the more sensational threat reporting," such 

as Bin Ladin wanting to hijack U.S. aircraft, et cetera. Well, 

the more sensational threat reporting was right. Why didn't the 

combined intelligence community -- why weren't they able to 

corroborate something as essential as that, Mr. Black? 

MR. BLACK: Sir, looking at the PDB article, I would like 

reflect upon the time of that. Clearly this was a period of 

heightened threat. We had a global collection network out. We 

were receiving significant amounts of intelligence. It certainly 

was spiking, and all the indications that we had were clearly 

pointing at the Saudi Arabia peninsula, Saudi Arabia, to a 

lesser extent Israel and Europe. So the focus, the tactical 

focus of the threat was certainly in that area. 

The strategic piece is that by Osama Bin Ladin's own words --

has stated he has a war against the United States, he wishes to 

strike the United States. In fact, he declared that American 

civilians should be considered as combatants. I think that PDB 

piece is basically a place marker that is a reminder to the 

principals that read these materials that, whereas the tactical 

intelligence is pointing to locations overseas, that is is good 

to be mindful of what his ultimate objective is, that it is to 

strike hard against the United States. And I think that's 

essentially the balance between the two, sir. 

MR. LEHMAN: Thank you. 

In the last paragraph, the presumably FBI sources report and 

tell the President that there are some 70 full field 

investigations going on. We previously had testimony from Mr. 

Berger that the -- in response to queries to the FBI on al 

Qaeda, the response was we got it covered. There have been 

reports, and we'll hear from that later -- hear from him later 

on, that Attorney General Ashcroft, when querying about the 
104

terrorist threat, the FBI response was essentially we've got it 

covered. This PDB has the same tone. We're doing 70 field 

investigations on suspected al Qaeda personnel in the United 

States; we've got it covered. 

And our understanding is that this was, to put it nicely, a 

bit of an exaggeration, because 70 full-field investigations 

have the aura of being a major, massive "going to battle 

stations," where in fact it really referred to every single 

individual that was under investigation. So it was an 

exaggeration which gave a wrong perception at a time when the 

threat that we now know was really much further along. It seems 

kind of a back-handed, off-handed way to be telling the 

President of the United States of efforts that the Bureau was 

doing. Could you address that? 

MR. PICKARD: Mr. Lehman, you're correct, with approximately 

70 full-field investigations they focused on 70 individuals, 

give or take some. 

But first off, I did not have access to the PDB. I had never 

seen the PDB until September 11th. So the FBI did not get to vet 

the article. I would find it a mischaracterization to say that 

anyone in the FBI said "we've got them covered." We only knew 

what we knew. The intelligence we had led us to these 70 

individuals, and we worked on them as best we could. 

As I said in my statement, it's a give and take between Cofer 

and myself back and forth as to picking up bits and pieces of 

information. Those 70 in the United States, they were partly a 

result of FBI investigations, but credit has to be given very 

greatly to the CIA for giving us the information and for the 

other members of the intelligence community that they provided 

us with information to direct us to look at these individuals. 

Otherwise, we're operating in a vacuum, where we don't know who 

to be on. We cannot, by any stretch, target any persons of a 

particular faith just because they belong to a faith. We're 

trying to identify people who are al Qaeda operatives who might 

give either some kind of support, whether it's financial or 

otherwise, to these individuals. 

If I could elaborate on that for a minute, we know of al 

Qaeda operatives in the United States, Hamas, Hezbollah, the 

Provisional IRA has operatives in the United States that we have 

investigations on, we have Russian intelligence officers, North 

Korean, Cuban intelligence officers within the United States. We 

have investigations on them, trying to identify with whatever 
105

means we have available, including FISA, what they're doing, and 

trying to catch them either in the act of espionage or prevent 

an act of terrorism. 

As far as those 70 cases, two of them were indicted and 

convicted on the East Africa bombing, not for actions they took 

here in the United States but for what actions they took outside 

of the United States. But both of them were U.S. citizens. 

We have another individual who was convicted of another 

criminal matter outside of terrorism. We also determined that 

some of these individuals, who our foreign intelligence and CIA 

identified to us, they left the United States, and we made the 

hand-off to the CIA to -- "Can you get with your foreign 

counterparts and watch these people? We think they are of 

interest, but they did not do anything here in the United States 

that would cause us alarm." 

We had a number of them picked up on immigration charges 

because they had extended their visas. I could ask the FBI to 

provide you with a detailed listing. And I'd like to also 

caution that the number 70 is somewhat inaccurate. I don't know 

how that got into the PDB that way. But the actual number is 

inaccurate, and it's a classified number. I would not want Osama 

Bin Ladin to know how many we thought of his operatives were in 

the United States. 

MR. LEHMAN: But to take you up on your mention of the 

prohibitions on investigating religious institutions, the Levy

restrictions, and so forth --

MR. PICKARD: Educational institutions, too. 

MR. LEHMAN: So you were not able to target schools, mosques 

and other sanctuaries? 

MR. PICKARD: No, we were not. 

MR. LEHMAN: As you know, very shortly after the September 

11th attack, some of the commercial databases, like Axion, ISO, 

ChoicePoint, so forth, were queried, and nearly all of the 19 

hijackers were very prominently covered with addresses, credit 

cards, locations, et cetera. Why did not the FBI make use of 

those commercial databases before 9/11? 

MR. PICKARD: We were prohibited from utilizing a lot of those 

commercial databases by statutes and things like that. That was 
106

one of benefits of the PATRIOT Act, as I understand it. I have 

not read the act and I'm not an attorney and don't want to start 

practicing. 

MR. LEHMAN: Mr. Black, Mr. Clarke prominently, and other --

in fact, numerous other witnesses have alluded to the fact that 

in their belief, the Directorate of Operations in CIA, going 

back to the traumas of the post-Watergate era, had a deeply 

entrenched culture opposed to covert operations and certainly 

opposed to targeting individuals like Osama Bin Ladin for 

killing, to the point where one of our witnesses, under oath, 

told us that one of your senior associates in the agency had 

said that he would resign rather than carrying out an order that 

would target Osama. 

Since we've heard it from more than one witness, is there a 

cultural problem in our Directorate of Operations in CIA? 

MR. BLACK: I have no cultural problem whatsoever. Our mission 

is to engage with the -- close and engage with the enemy to 

produce intelligence. If you're talking about authorities, 

covert action authorities, I really do not want to go into that 

here. I'd be happy to do it in closed session. 

Let me just underscore one point. 

We operate under the law. Covert action authorities are 

communicated in a thing called the Memorandum of Notification. 

You have lawyers -- the National Security Council; you have 

lawyers in the Central Intelligence Agency. They have groups 

called Lawyers Groups; may I never be in such a group --

(laughter). And they hash over words. Words mean something in 

this country. And words are formed into orders for action and 

the Central Intelligence Agency conducts itself according to 

those orders under the law. And if you want to know what we are 

to do, you have the appropriate clearances. You can access and 

take a look at it. That's how we follow our instructions. What 

is written down in these Memorandums of Notification are orders 

to engage the target, and that's what we do, sir. 

MR. LEHMAN: Did you -- without going into any classified 

information, did you believe that you had the authority to go 

after Osama personally, as opposed to in a capture operation? 

MR. BLACK: Again, I will try and meet your needs in this, but 

I would really prefer to do much of this in a closed session. 

The constant theme, from the first of these MONs in this series 
107

through, were very explicit, and that the objective, which was 

agreed to -- everyone in the Central Intelligence Agency, and 

all of our lawyers are unanimous, as reflected by the statements 

of the director of Central Intelligence and the deputy director 

of operations -- it was capture, was the objective. 

MR. LEHMAN: Thank you. Good answer. 

It leads to another question, which is the division of 

responsibilities for covert action between the Defense 

Department and the CIA. The Title 10, Title 50 distinctions. 

From all of the testimony we've gathered and the evidence, 

this clearly was a point of disagreement and dysfunction, with 

fingers being pointed on each side at the other for not doing 

what they should be doing, or not having the capabilities that 

they should have. There have been proposals that are very active 

today that really recommend that CIA not be in these operations, 

these paramilitary operations; that instead the Title 50 kinds 

of operations be given to the Special Operations command with 

CIA participation, but that there be a unified command that is 

tasked with that kind of responsibility. 

What do you think of that? 

MR. BLACK: I'm all -- as an American, I'm all for what works. 

I think the record of the Central Intelligence Agency responding 

after 9/11 -- having the plan, surging into Afghanistan, setting 

it up for the warriors to win that battle with low loss of life, 

in a way that I think was highly efficient, as stated by the 

President of the United States -- I think, is an example of 

where the two can work together effectively. 

I personally believe they can work together far more 

effectively. Anything that you can do to cement this 

relationship so it's even closer, particularly with the U.S. 

Army's Special Forces and the Central Intelligence Agency -- I 

personally believe that's our future. 

In fact, in Afghanistan, we used to use personnel together. 

The civilians and the military are indistinguishable, and they 

all bring particular skills to the battlefield. And so I think 

that's an area of great growth. We have a lot of commonality, 

and it should be encouraged. 

MR. LEHMAN: Thank you. I have one final question for both of 

you. 
108

First, Mr. Pickard, we've spent a lot of time on the Cole. 

And you have addressed it very well and all of the benefits that 

have come out of the several hundred agents that were sent over 

there and the intelligence yield, although it certainly didn't 

interfere with 9/11, but it certainly has expanded our 

understanding of al Qaeda since. 

But we've also had very consistent testimony that -- from 

very high sources that the fact that the Bureau was not able to 

complete its investigation or wanted to take so much time to 

meet all their evidentiary requirements that a final finding in 

which they were prepared to stand behind -- that al Qaeda did it 

-- came so late that it was well past the Clinton administration 

and well into the Bush administration, by which time some people 

thought it was too stale to react. And there -- well, it's --

we're having a hard time reconciling where everybody immediately 

in the community, throughout the community, the day after said, 

"It's Osama, and it's al Qaeda who did it." Yet there was not a 

willingness to go on record and formally say that until months 

and months after the fact. 

Could you -- which many people have said was why we didn't 

retaliate and why we did not get any benefits from a deterrent 

attack of al Qaeda capabilities in Afghanistan. Could you both 

comment on that? First, Mr. Pickard. 

MR. PICKARD: Yeah, I would like to comment on it. When the 

attacks happened, you know, in the African embassy bombings, I 

was actually in charge of the FBI that day because Director 

Freeh was out of town. 

I dispatched our Washington field office because our standard 

operating procedure was if we didn't have any indication that a 

particular group was assigned to it our Washington field office 

would be dispatched to any bombings in Europe, the Middle East 

or Africa. For example, the Khobar Towers bombing; they were 

dispatched to that and became the office of origin on it. 

When the Cole happened, we had learned a lot from the East 

Africa bombings. And as a result, almost immediately we lit up 

that it's got to be al Qaeda. In addition, after about three or 

four days there, the first agents on the scene, based upon the 

planning and preparation that they observed in their limited 

investigation to date, we were confident and we reported back to 

the attorney general that we firmly believed it was al Qaeda. 

But our caveat was we could not take that to a court of law and 

bring an indictment; we needed further investigation and things 
109

like that. That's what happened in January. We were at the stage 

then, working with the Southern District of New York, that we 

could start to talk about specifically indicting al Qaeda for 

the U.S.S. Cole. 

MR. LEHMAN: Thank you. Mr. Black. 

MR. BLACK: Well, I believe it's -- I think it's very 

important to be accurate in these things. You want to provide 

your customer with the best information you have. Instinct, 

professional instinct is good. In the wake of the Cole we were 

able to pretty quickly determine that al Qaeda-associated people 

were involved in this. And I think by January we made what we 

described as the intelligence case, and the intelligence case --

distinct from the law enforcement case, CIA doing the 

intelligence case. And what we came up with -- yes -- as I 

recall, yes, these are al Qaeda-associated people that conducted 

this operation. The area that we felt we needed to explore more 

was proof that there was a clear command/control relationship 

between the leadership of al Qaeda -- Osama Bin Ladin or Khalid 

Sheikh Mohamed, someone like that -- that we could actually 

track to these individuals that actually executed the attack. 

Now, were I working for you, I would say, you know, it looks 

pretty good that, pretty early on. This is al Qaeda, you know. 

Well, that's great. It's based primarily on the little 

information I have access to, professional experience. We 

collected more intelligence around the world. We went about it 

globally, comprehensively. You know, our confidence went up. But 

by January the intelligence case was pretty positive. But we 

were still looking for that positive link to Osama Bin Ladin

command and control, and we actually did get that, I might point 

out, but that was something like a year, a year and a half 

later. So we could say to you absolutely this is proof positive 

of the intelligence case. Indications early on yes, but separate 

and distinct from the law enforcement case, which would be of 

such a quality that you could take into a U.S. court of law. 

MR. LEHMAN: Thank you both for your frankness. 

MR. KEAN: Congressman Roemer? 

MR. ROEMER: Thank you, Mr. Chairman. 

Welcome to both of you to the 9/11 Commission. You have both 

playfully insulted lawyers in the last 10 or 15 minutes. I'm not 

a lawyer -- (light laughter) -- I don't care. You've got six 
110

lawyers following me in the questions; you might want to say 

something nice in the next 10 or 15 minutes. (Laughter.) Just a 

little bit of advice to you for the next few minutes. 

You two are certainly squarely in the hot seat. We have staff 

statements and the Joint Inquiry report that has roundly and 

deeply systemically criticized the FBI and the CIA for their 

performances leading up to 9/11. They have cited problems in 

sharing communication, connecting the dots, overclassifying 

documents, and glitches and failures to protect the seams. I 

have a question for both of you to just go at maybe one of the 

problems. 

I asked Director Freeh, Mr. Pickard, earlier about the active 

informant who had engaged two of the 19 hijackers, and he said, 

"Quite frankly, the FBI should have done better." Let me give 

you a case and get your response from it. 

You have said in your remarks that that was the most chatter 

in the summer of 2001. When we have talked to some of the people 

that should have heard this serious chatter in your 

communication with them leading into the spring and the summer, 

when a BIG event was going to happen, an experienced terrorism 

supervisor in the Washington office six blocks from 

headquarters, six blocks away, says he was not aware of any 

heightened terrorist threat, his squad took no special action

leading up to 9/11. A supervisor in the Miami field office, a 

Special Agent in Charge, said, this was inside-the-beltway-kind 

of thing, never heard of that chatter until after 9/11. What 

happened? 

MR. PICKARD: Your staff has put together some of the 

communications we sent out. I was concerned making sure that we 

were at maximum capacity, maximum effort on that. I personally 

had a conference call with all 56 SACs and all the assistant 

directors on July 19th just to make sure that -- I know some 

people don't read everything that comes out. But just to 

reinforce that, I had all 56 SACs -- I can't account for the SAC 

in Miami as to whether he was actually on the call, but whoever 

was in charge of the office that day was on that call, because I 

did not get on it until they were all on it. During that call I 

reiterated the issue of the threat level and also to make sure 

they were at their maximum effort on that. I don't know --

MR. ROEMER: Do you recall your precise words that you 

recently told the 9/11 Commission on that conversation? 
111

Your words to the 9/11 Commission were "Evidence Response 

Teams ready." Evidence response. That's reactive, that's not 

proactive saying here's the threat, here's what you need to do 

about it. You're saying, if we get hit, have the Evidence 

Response Teams ready. 

That's what you told the 9/11 Commission staff. 

MR. PICKARD: I also -- I had a very brief conversation with 

them about that. I was surprised at the brevity of it. 

MR. ROEMER: Well, it sounds like it was pretty brief to the 

field offices as well -- response, not active threat. 

MR. PICKARD: But I also had -- I spoke to each of the 56 SACs 

during the month of July, between July 9th and July 31st, each 

of them individually. I had them on the phone, secure conference 

call with the assistant directors from Counterterrorism, Dale 

Watson; Counterintelligence, Neil Gallagher; and the assistant 

director of the Criminal Division, Rubin Garcia. We discussed 

their performance, and in addition to that hour-and-a-half 

discussion of their performance in their field office and their 

commitment to the counterintelligence and counterterrorism 

efforts, we also discussed during that phone call the threat 

level. I don't know why the SAC in Miami did not get it. I spoke 

to him on July 18th. 

MR. ROEMER: Six blocks away -- your supervisor six blocks 

away didn't get it. 

MR. PICKARD: I spoke to the SACs. They should have been 

working that information down. I don't --

MR. ROEMER: So could you have done a better job, or are you 

just saying, "I don't know why they didn't hear it." Did you 

task them again after the 19th? 

MR. PICKARD: I don't understand why they didn't hear it. I 

spoke to each of them individually, as I said. And in addition, 

I had the communications out to them. I don't know what more I 

could have done. Some people, I don't understand whether they 

can't recall it or not. But if you talk to -- for example, I 

know the staff, the New York office agents, they got it; they 

were always on top of it, and many of the other agents that I 

spoke to over the last week. 
112

MR. ROEMER: When we -- as you read in the staff statement, 

when we tasked out to the field if all those offices were on 

high alert and doing their maximum effort, I think we got nine 

out of 10 back saying they weren't at maximum effort, they 

weren't at war footing. 

Mr. Black, let me ask you; your folks did a very professional 

job following people into Kuala Lumpur to a meeting of known, 

suspected thugs, terrorists, murderers. Then, after the meeting 

of a couple of days in Kuala Lumpur, they leave, three of them 

leave and go to Bangkok. You failed to follow those three 

people. 

To me that's like a sheriff in a local town finding some 

people on the border of Indiana that are suspected murderers, 

letting them go across the border in Michigan and not alerting 

anybody that they're on their way. 

What happened? Where did we let down the guard here from 

Kuala Lumpur to Bangkok that then let two of these hijackers 

into the United States? 

MR. BLACK: The activity covering these people in Kuala Lumpur 

was pretty comprehensive. We were concerned about their actions. 

We were able to conduct photography. 

MR. ROEMER: I said you did a good job there. 

MR. BLACK: (Off mike) -- later, so that was -- worked out 

pretty well. 

What happened was that when the targets departed Kuala Lumpur 

and went to Bangkok -- that the advisory information -- the 

alert to the people down range into Bangkok did not arrive in 

time to put coverage upon the targets upon arrival; got there 

late. The targets went out into the community, and working with 

our friends locally, as a priority operational activity, we 

tried to find these people. 

So we were looking for them in the interim and there -- the 

next sign of life that we identified of these targets, 

unfortunately, was that -- looking at, I think, airport 

departure cards, something like that, some physical evidence 

that they had departed. Then that information was reported cable 

traffic, which is another part of the story. 
113

MR ROEMER: So a couple months later you find out that they've 

departed Bangkok and are in the United States. 

MR. BLACK: That's correct. With looking -- you know with 

these things, having a good partnership with our friends --

looking to try and find these people, we were able to find 

evidence of them. Bangkok, I'm sure you've been there. It's a 

big town. We found evidence that they had departed, and this 

information was communicated. That took place in March. So they 

had come and they had gone, with us being able to know that till 

we came up with the departure cards, and that was the status of 

it. 

MR. ROEMER: Mr. Pickard, what's important for me to try to 

understand as well as -- in your role at the number two position 

at the FBI and acting director, I'm interested in knowing what 

you were telling the highest government officials, briefing them 

about the threat leading into the spring and summer of 2001. Did 

you ever have the opportunity to brief the President of the 

United States on counterterrorism issues? 

MR. PICKARD: No, I did not. 

MR. ROEMER: Did you ever ask to do that? 

MR. PICKARD: No, I did not. 

MR. ROEMER: Did you ever brief the Vice President of the 

United States on counterterrorism --

MR. PICKARD: Yes, I did. 

MR. ROEMER: How many times did you brief the Vice President? 

MR. PICKARD: I recall one time that he came over to FBI 

headquarters on March 16th. I believe he came another time, but 

I was not present. I did not personally do the briefing. 

Director Freeh and Assistant Director Watson did them. 

MR. ROEMER: And did you brief the Vice President on an al 

Qaeda presence in the United States? 

MR. PICKARD: Yes. 

MR. ROEMER: And what was his reaction? 
114

MR. PICKARD: He was surprised that al Qaeda was here in the 

United States, as was the attorney general. We told them we had 

coverage on them; and as I explained earlier, we also have 

Hamas, Hezbollah, many other terrorist groups. We also have 

intelligence agents from foreign countries here in the United 

States. With the laws and regulations we have, we try to utilize 

anything we can to thwart their efforts, but if they haven't 

crossed the line, if they haven't done something illegal, we 

don't have an opportunity to do anything with them. 

MR. ROEMER: Did the Vice President task you with any kind of 

undertaking to do something about the al Qaeda presence? 

MR. PICKARD: Not that I recall. 

MR. ROEMER: Didn't ask you to arrest them? Didn't ask you how 

--

MR. PICKARD: The Vice President didn't --

MR. ROEMER: The Vice President --

MR. PICKARD: He had very few comments. 

MR. ROEMER: And are you sure that that was the Vice 

President's reaction, according to what you said to the 9/11 

Commission staff? 

MR. PICKARD: I think you're referring to what the attorney 

general said. 

MR. ROEMER: No, I know what -- I'm going to ask you about 

what the attorney general said. 

MR. PICKARD: As I recall, the Vice President, at the end of 

the meeting, had three points. I recall the point about the 

computer systems of the FBI. I don't recall the other two. 

MR. ROEMER: So he did say two or three things to you. 

MR. PICKARD: Right. 

MR. ROEMER: Did he follow up with you, in the spring and 

summer when the warning was getting bigger and bigger, about the 

al Qaeda presence, (that he was ?) worried about that? 
115

MR. PICKARD: I believe he had another meeting with Director 

Freeh, but I was not at it. 

MR. ROEMER: In the spring or the summer? 

MR. PICKARD: In the spring. Director Freeh left -- retired 

from the FBI about June 22nd. 

MR. ROEMER: Well, I'd certainly like to follow up with you a 

bit more on that particular topic as you recollect those three 

items. 

Did you brief the national security advisor to the President, 

Dr. Rice, on counterterrorism? 

MR. PICKARD: Shortly after Dr. Rice came in, Director Freeh 

and I went up and met with her and Steve Hadley and briefed her 

on both counterintelligence and counterterrorism issues. 

MR. ROEMER: And how specific were you on counterterrorism 

issues? Did you generally brief her on counterterrorism? Was it 

specifically on al Qaeda and Bin Ladin? 

MR. PICKARD: It wasn't specifically on them. It was the whole 

counterintelligence and counterterrorism program of the FBI. 

MR. ROEMER: And this was in February 2001? 

MR. PICKARD: I believe it was January 26th. 

MR. ROEMER: January 26th is one of the meetings. I believe 

you also briefed her in February on Khobar Towers. 

MR. PICKARD: That's correct. 

MR. ROEMER: So you had two. 

MR. PICKARD: Yeah. At least two. 

MR. ROEMER: And did Bin Ladin come up in the second briefing? 

MR. PICKARD: No, it didn't. 

MR. ROEMER: Okay. You sure? 
116

MR. PICKARD: Yes. It was specifically on Khobar Towers 

because we were running towards the end of the statute of 

limitations on it, which was June 25th. 

MR. ROEMER: Okay. Well, again I'd like to talk to you about 

that in terms of your comments to the staff. 

Did you brief the attorney general on terrorism? 

MR. PICKARD: Yes, I did. 

MR. ROEMER: And how many times did you brief him on 

terrorism?

MR. PICKARD: After Director Freeh left the FBI, the attorney 

general had me come in on June 22nd to meet with him, and he 

appointed me as the acting director of the FBI. And then on June 

28th I had a meeting with the attorney general and deputy 

attorney general, and I believe his chief of staff was in parts 

of that meeting as well as Assistant Director Garcia from the 

FBI. 

MR. ROEMER: So what would you guess, Mr. Pickard? How many 

times did you brief? 

MR. PICKARD: At least three times. 

MR. ROEMER: Three times. And what were the attorney general's 

priorities with respect to terrorism? Was it a top-tier priority 

for the attorney general?

MR. PICKARD: It was a top tier for the FBI. The attorney 

general on May 10th issued budget guidance for us, and I did not 

see that as the top item on his agenda. 

MR. ROEMER: How -- did you take that to the attorney general, 

that you were concerned that that was not a top item for him? 

And was this the $58 million that you're concerned about? 

MR. PICKARD: No, that was later. This was the budget guidance 

that came out on May 10th. During the summer of 2001 the FBI 

submitted what I believe was our 2003 budget proposal. That 

proposal came back and the additional funds that we were looking 

for on counterterrorism were denied. I spoke to the attorney 

general briefly and asked him if I could appeal it, and he told 

me yes I could; put it in writing. I had our finance and 

counterterrorism people put together an appeal of that decision, 
117

and then on September 12th I read the denial of that appeal from 

the attorney general. 

MR. ROEMER: So you had a May 10th memo on the attorney 

general's priorities that you objected to, and then you had a 

meeting in August where you personally appealed to the attorney 

general and received a letter from him saying no to the 

increases that you received on what date? 

MR. PICKARD: I received that on September 12th, that denial. 

MR. ROEMER: So what does this say about counterterrorism as a 

priority for the attorney general? Do you think it was not the 

priority that you hoped it would be, commensurate with the 

FBI's? 

MR. PICKARD: I only had the perspective to see it from my 

view, of the FBI. I don't know all that the attorney general had 

to look at with 100,000 employees of the Department of Justice. 

MR. ROEMER: Thank you, Mr. Chairman. 

MR. KEAN: I've just got a couple of questions. 

During the summer of 2001 the Minneapolis office had 

Moussaoui detained, and they were concerned that he might be 

part of a larger plot. Were you aware of his detention and aware 

of his -- those concerns? 

MR. PICKARD: No, I was not. 

MR. KEAN: Were you aware of those concerns any time before 

September 11th?

MR. PICKARD: No, I was not. 

MR. KEAN: The New York office began searching for al Hazmi 

and al Mihdhar, knew that they were in the country and were 

searching for them that same summer. Were you aware of that? 

MR. PICKARD: No, I was not before September 11th. 

MR. KEAN: Do you think if those two matters from those 

different offices had been brought to your attention, do you 

think you might have thought a little differently about the plot 

or whether there was a plot, or you might have acted differently 

based on those pieces of information? 
118

MR. PICKARD: I've thought long and hard about that, Governor. 

And it's a frightening thought to think that that could have 

been on my desk on September 10th, and would I have done 

something differently or not? And I can't answer that. I go back 

and forth on that constantly. It keeps me up at night, thinking: 

if I had that information, would I have had the intuitiveness to 

recognize, to go to the President, to do something different? 

MR. KEAN: What bothers me is just the fact it didn't get to 

you --

MR. PICKARD: That --

MR. KEAN: -- you know, that something in the FBI stopped 

those very two important pieces of information, one from -- from 

different parts of the country, from rising to the kind of level 

where you might have seen them and might have acted on them. 

MR. PICKARD: Governor, in defense of the employees there, 

they were getting -- one of unit chiefs -- at least 100 pieces 

of information a day. They were getting fed from a fire hydrant 

and trying to sort through those things. 

I spoke recently with the individual who was in charge of the 

Minneapolis office, and he said -- I asked him. I said, "Why 

didn't you call me?" I said, "You know me." I send a -- once a 

year out an e- mail to all FBI employees to tell them to come to 

me with any issue that you have, whether it's investigative, 

administrative, your pay or some other problem. And I'd heard 

frequently from individuals who said, "I can't get a group on 

undercover operation through," or "I'm not getting my annual

leave corrected," or whatever it might be. And my secretary used 

to kid me about it, because she'd print it out each night and 

say, "Here's your homework. Do it tonight and bring it back 

tomorrow morning" -- because I don't type. 

Those things bothered me, but those employees working down in 

the Counterterrorism Division were working very hard. They were 

trying to do the best they could with the hundreds of pieces of 

information they could. And as we sit here with 20-20 hindsight, 

picking out three or four pieces of information, I think it is a 

disservice to them to recognize what pieces, in light of 9/11, 

were relevant. 

MR. KEAN: "Hindsight" is a word we've used. We've all got to 

be careful to look at the world as it was before 9/11. 
119

Ambassador Black, using hindsight now, if we were able to 

recognize the kind of tragedy that was going to happen, what 

would you have done differently? What did we do wrong? 

MR. BLACK: Well, I'll tell you, I would start from the 

standpoint that when I started this job in 1999, I thought there 

was a good chance I was going to be sitting right here in front 

of you. And I was mentally prepared for it all along. 

The enemy we're up against is one that I've been operating 

against since the early '90s. 

I know these guys. I know what they want to do. I know how 

dedicated they are. And they were coming at us hard. And, you 

know, we did all that we could at our level to engage these guys 

to try and produce the kinds of intelligence, to kind of produce 

the kinds of leads. And the men and women that did this, 

governor, that served this country in war out front did a 

fantastic job, you know? So on the one side you have 

catastrophic failure, more than 3,000 people dead; no one's more 

bothered by this than us. But we engaged these targets. You'll 

never hear from us, Oh, you know, we didn't get it. “Oh, we got 

it, all right.” We knew what we were up against. We gave it all 

we had. The big bottom line here -- you know, people come up 

with these grand ideas for improvement, you know: big computers, 

or whatever. The bottom line here, I got to tell you -- and I'll 

take part of the blame on this -- I kind of failed my people 

despite doing everything I could. We didn't have enough people 

to do the job, and we didn't have enough money by magnitudes. 

And I could give you comparisons you, like, wouldn't believe. 

We used to talk about it in the counterterrorism center. You 

know, this goes into the '90s. I mean, this has been so hardwired that, you know, by the time we get up in the recent past, 

I mean, this train is on this track and this is where it's 

going. Hell, I don't know if we ever COULD have got it off 

without some kind of catastrophe. I will tell you, you know, 

going back to the '90s, doing the terrorist target, the only way 

we ever got more money essentially was we would spend ahead of 

the curve and run out. 

You know, people talk about the millennium threat? I can 

remember we were spending money on the millennium threat, went 

to the director. I said, "Mr. Tenet, you know, we're spending 

money here; we're not going to make it to the end of the fiscal 

year. We're going to be three months short. We're going to have 

to stop and -- you know, we won't be able to operate." He said -
120

- well, he sighed and he said, "Well, you know, do what's right 

for the country; blow it out." So we did. So we spent -- you 

know, after the money threat was over, we spend our time trying 

to the money to make up for that which we spent, OR -- and I'm 

just not going to go into the exact kind of language I used, 

which is very graphic. But unfortunately, when Americans get 

killed, it would translate into additional resources. It's a 

constant track: either you run out, or people die, when people 

die you get more money. 

And, you know, it would have been better if we as a country

had made the commitment to provide our counterterrorist warriors 

the resources and the numbers so they could do the best job they 

could. But what I want to leave you with -- I mean, that's all I 

want to leave with. The people that did this are heroes, and we 

didn't give them what they needed to fight and win. It's that 

simple. Thank you. 

MR. KEAN: Senator Gorton. 

MR. GORTON: Mr. Pickard, you answered some of these questions 

at the beginning of Commissioner Lehman's testimony, but I want 

to press you a little bit further on it. 

In the now famous Presidential Daily Briefing of August 6th 

2001, after a statement that the CIA had not been able 

corroborate some of the more sensational threat reporting, there 

is that single line, "The FBI is conducting approximately 70 

full field investigations throughout the United States that it 

considers Bin Ladin-related." 

Now, you quite rightly said that wasn't your sentence; you 

didn't write it. No one from the FBI wrote it. It was written by 

someone from the CIA after a conversation, a telephone 

conversation with someone at the FBI. 

MR. PICKARD: That's correct. 

MR. GORTON: Now, our staff says this about that statement: 

"The 70 full field investigations number was checked out by the 

Joint Inquiry and we looked at it too. It was indeed a number 

the Bureau used at the time. It was generously calculated to 

include all fundraising investigations around the country that 

might have a connection with UBL. It also counted each 

individual in an investigation as an individual full field 

investigation." 
121

Now, was not Commissioner Lehman correct in saying the normal 

recipient of a statement like that would generally -- could 

easily take the interpretation -- "we've got it covered" -- that 

that's what that meant. That's one question. 

The second question is, is this staff interpretation or 

investigation of what was meant by 70 full field investigations,

correct, as far as you're concerned? 

And my third question would be, had you been writing it up, 

would you have been more modest and more limited in what you 

claimed for the FBI? 

MR. PICKARD: First off, to your issue of do we got it covered 

-- we could never say that. We only know --

MR. GORTON: No, I asked whether or not the recipient might 

well interpret the sentence that way? 

MR. PICKARD: I would never -- especially with the experience 

I've had in counterintelligence and counterterrorism, you can 

never say you have it covered. You don't know what you don't 

know is the problem. You can only tell, based upon the 

intelligence you have, you have an understanding of where 

they're coming from, and things like that. But I don't think 

anybody can say -- it's only as good as the intelligence you 

have, just like 9/11; it was only as good as the intelligence we 

had, and we didn't have much. 

I'm sorry. Your second -- whether these numbers are correct? 

MR. GORTON: The second question is whether or not our staff 

characterization is correct. 

MR. PICKARD: I only learned about this when the PDB was 

released within the last couple of days. And when I was at FBI 

headquarters yesterday, I asked could they explain to me the 70 

cases, which I had no recollection of ever hearing about as an 

aggregative number. And they gave me a rundown on the 70, 

approximately, cases. And I have that that I could provide to 

your staff afterwards, but I could give you some of the 

highlights. That as I said before, two of them were indicted and 

convicted on the East Africa bombing. One was indicted and 

convicted on another criminal case. Six moved abroad and were 

passed off to the CIA. Four were deported for immigration 

violations. Two died, through no fault of the CIA. 
122

MR. GORTON: (Laughs.) 

MR. PICKARD: But they might claim credit for them. 

Twelve of the investigations were closed because the 

individuals did not have any connections with terrorism, as we 

had initially suspected. That just gives you some kind of 

context. 

MR. GORTON: Okay, that's 12 out of 70. Were a number of them 

simply fundraising investigations? 

MR. KEAN: This is the last question, Senator. 

MR. PICKARD: I'm sorry, but I do not know that. And the 

material they gave me yesterday does not expound on that. I'll 

be happy to ask Director Mueller --

MR. GORTON: Would you have characterized it a little bit 

differently if you had been reporting directly to the White 

House as a part of that PDB? 

MR. PICKARD: I would not want anyone to think the statement 

that "we've got it covered" or anything like that. We only know 

what we know; we don't know what al Qaeda is. And the lack of 

penetration of al Qaeda, as I said in my opening statement -- we 

did not have great sources in al Qaeda, and that's evidenced by 

9/11. We did not, as George Tenet said, steal the secret. 

MR. KEAN: Governor Thompson. 

MR. THOMPSON: Mr. Pickard, since its declassification last 

weekend, you've, I assume, read the PDB of August 6th? 

MR. PICKARD: Yes, I have. 

MR. THOMPSON: On the first page it says, "Al Qaeda members, 

including some who are U.S. citizens, have resided in or 

traveled to the U.S. for years, and the group apparently 

maintains a support structure that could aid attacks." But in 

fact, as we now know, the al Qaeda members who participated in 

September 11th didn't use any such support structure. Is that 

correct? 

MR. PICKARD: That's my understanding. I left the FBI in 

November 2001. I don't know if any other information has been 

developed. 
123

MR. THOMPSON: Well, just to make sure the record is clear, 

you said in your prepared statement, "They did not receive 

support knowingly from anyone in the United States, nor did they 

contact known al Qaeda sympathizers in the United States." Is 

that correct? 

MR. PICKARD: That's correct. 

MR. THOMPSON: At the bottom of the second page, it says "We 

have not been able to corroborate some of the more sensational 

threat reporting, such as that from a service in 1998" -- that's 

three years earlier -- "saying that Bin Ladin wanted to hijack a 

U.S. aircraft to gain the release of the blind sheik and other 

U.S.-held extremists." 

As we now know, the attack on September 11th was not for the 

purpose of hijacking a U.S. aircraft to gain the release of any 

terrorists. Is that correct? 

MR. PICKARD: That's correct. 

MR. THOMPSON: Do you know the circumstances of the 

conversations between the CIA operative who prepared this PDB 

and an operative of the FBI who supplied some of the 

information? 

MR. PICKARD: No, I do not. 

MR. THOMPSON: You do not. Okay. 

The Cole. When did the FBI come to the conclusion that al 

Qaeda was responsible for the Cole? Not Osama Bin Ladin, al 

Qaeda. 

MR. PICKARD: I -- I -- I do not know. 

MR. THOMPSON: Mr. Black? 

MR. BLACK: Sir, I recall that there was a report entitled 

"The Intelligence Case", and I believe that was in January, the 

following January, making the intelligence case that al Qaeda 

operatives were involved, as I referred to earlier, but that the 

intelligence case was still lacking, and that at least the CIA, 

at least, was unable to prove linkage between these al Qaeda 

operatives in Yemen and Osama Bin Ladin in Afghanistan. 
124

MR. THOMPSON: But the CIA knew during the course of the 

Clinton administration that al Qaeda operatives were involved in 

the Cole. Is that not right? Forget whether they could be linked 

to Osama Bin Ladin or not. 

MR. BLACK: Excuse me. (Pause.) 

I'm going to have to take this for the record. I just don't -

- I just do not -- do not remember it. What I do remember about 

this is that the effort to collect intelligence, that it 

produced the analysis that al Qaeda operatives were involved in 

this. But the outstanding question I recall was that of command 

and control, which was resolved a substantial period later, 

where we were able to prove, even in the intelligence case, 

there's a direct link between Osama Bin Ladin and the Cole

attack. 

MR. THOMPSON: Once it was proved, was there any discussion in 

the Bush administration about retaliating against al Qaeda or 

the Taliban for their attack on the Cole? 

MR. BLACK: I would not know if there was. I was not privy to 

that kind of discussion. 

MR. THOMPSON: You never heard that. 

MR. BLACK: I never heard of that, sir. 

MR. THOMPSON: Mr. Pickard, did you ever hear that? 

MR. PICKARD: I never heard that, either. 

MR. THOMPSON: Thank you, Mr. Chairman. 

MR. KEAN: Senator Kerrey? 

MR. KERREY: Ambassador Black, are you familiar with the 1998 

effort to change the overt policy of the United States towards 

Iraq at all? I mean, the Iraq --

MR. BLACK: No, sir. I'm --

MR. KERREY: -- the details of the Iraq Liberation Act? 

MR. BLACK: No, I -- I only did terrorism. That's more than 

enough for me. Iraq is from in --
125

MR. KERREY: Well --

MR. BLACK: The way we were organized is something different. 

MR. KERREY: The reason I say it is it's on my list of 

regrets. I mean, I -- not that I did that. I led the effort, 

President Clinton signed the legislation in -- on Halloween 

1998. Basically, what it did was it said that our overt policy 

has to be the same as our covert policy. 

And one of the things that -- the reason I say that is -- I 

sort of regret is that I didn't do the same with terrorism 

because it seems to me that when you say we were doing all we 

could, that we were at a state of war at the CTC, that the 

problem was on the overt side we weren't. And I wonder if you've 

seen the Delenda plan and the Blue Sky plan, or what Richard 

Clarke had in his 25 January memo, if you've seen those details, 

if you've given any thought to what would have happened if that 

had become the overt policy of the United States. 

Now I'd preface that by saying I've just -- I get angrier and 

angrier listening to Secretary Cohen and Secretary Albright and 

National Security Advisor Berger and Secretary Rumsfeld leading 

up to a great confrontation with Dr. Rice that, you know, they 

all had different reasons why they couldn't take military 

action. And they would posit what I thought was a straw man --

we either had to have the Normandy invasion or it was cruise 

missiles when there are all kinds of options. You've quite 

correctly described the exciting collaboration between the 

special ops forces and --

MR. BLACK: And it is exciting. It's actually --

MR. KERREY: Yeah, it's very exciting. It was an alternative 

that was on the table. And I wonder if you're either seen the 

Delenda plan or the Blue Sky or what Clarke had in his 25 

January memo, and if you have if you supported it and if you 

think that would have had an impact if it had been implemented 

in 1998? 

I mean, I read -- Director Pickard's statement is a shocking 

statement; say al Qaeda was turning out five times more 

graduates from the camps than the FBI and CIA were graduating 

from their training schools. And then I hear Secretary 

Rumsfeld's testimony, saying well, we just -- we're bombing dirt 

-- you know, whatever it was, the targets weren't very damn 

good. But if we'd have denied them access to those camps 
126

starting in 1998 it would have had a tremendous impact, it seems 

to me, in our effort against al Qaeda. 

MR. BLACK: Well, if I could, I really think I should limit to 

myself. I was an intelligence officer, not a policymaker. Others 

make these kinds of decisions. You can only --

MR. KERREY: Well, that -- I was a policymaker not an 

intelligence officer, and that doesn't stop me from getting in 

your space. (Laughter.) 

MR. BLACK: Okay, well, it should stop me. (Laughter.) First 

of all, I don't recall seeing the Delenda plan, but I do recall 

being a participant in originating the information for the Blue 

Sky memo, and we provided that to the National Security Council. 

MR. KERREY: Let me ask you another one on the overt side. 

What if either, again, President Clinton or President Bush --

you know, pick your poison -- either one of them had said that 

al Qaeda's different than Hezbollah and al-Aqsa and Hamas; 

they're different in that they've declared war on us. So al 

Qaeda members are part of an Islamic army that are trying to get 

inside the United States. What if the overt policy had been to 

say we're going to deny them absolute access and send 

instructions to our consular office and our INS offices and the 

FBI and everybody, and they said, you know, we've got to turn 

this thing out. Would, for example, the Phoenix memo had a 

different impact? 

MR. BLACK: Well --

MR. KERREY: If the policymakers -- again, pick your poison --

either President Clinton or President Bush had said in the overt 

space we're at war with al Qaeda; I may not need a congressional 

declaration of war -- that's too unpopular -- but at the very 

least I'm going to say al Qaeda's soldiers can't come into the 

United States of America? 

MR. BLACK: Well, I think, Senator, say, from the early '90s 

if we had engaged this with a warrior ethos, we would not be in 

this situation today. 

MR. KERREY: Let me ask you one last -- how in God's name did 

all this thing happen? I got to tell you, I hear battle stations 

and everything that we're doing, and at our airports we were at 

ease. We were stacked arms. We were not prepared for a 

hijacking. I mean, well, we didn't know all the conspiracy. A 
127

hijacking surprised us. That's what Betty Ong said when they 

heard her voice, that the government and the FAA -- none of us 

were prepared for even a simple hijacking. How in God's name did 

that happen? 

MR. BLACK: Am I meant to answer that, sir? 

MR. KERREY: Yeah. If you can. If you can't, fine. I mean, I'm 

not sure I could if you were sitting up here. 

MR. BLACK: Well, I mean, you know, I guess instinctively it 

says I don't know. But what I will say is that from my 

perspective that's why we tend to be a group of pretty paranoid 

people who don't get to sleep much --

MR. KERREY: (Laughs.) 

MR. BLACK: -- when you know basically that if they get by 

you, then it's going to be a challenge for this country to 

respond. We've been living that way for a lot of years of our 

lives, and that's the way it is for us. Or that's the way it has 

been until, you know, the current situation we're in, where the 

resources and the rules of engagement and what we need --

MR. KERREY: I quoted you earlier, Mr. Ambassador, saying that 

-- I loved what you said: you know, here's what we did, here's 

what we tried and here's what we failed to get done. And I mean, 

put myself in that camp. 

MR. BLACK: We could have used some help. 

MR. KERREY: I've got a similar list --

MR. BLACK: We could have used some help, Senator. 

MR. KERREY: (Laughs.) Thank you. 

MR. BLACK: Mm-hmm. 

MR. KEAN: Commissioner Gorelick. 

MS. GORELICK: Thank you, Mr. Chairman. 

I don't want either of you to think that my questions are in 

any way trying to blame people who tried really hard and who 

quite evidently feel very bad about the things that didn't get 

done or things that weren't executed perfectly. But it's our job 
128

to understand the efficacy of the things our government tried to 

do to protect the American people. 

Let me start, Mr. Black, with one follow-up question to you. 

Our staff statement talks about the CIA's zone defense, as 

opposed to man-to-man, to use the current basketball analogy. 

After al Hazmi and Mihdhar were followed by you out of Kuala 

Lumpur at the Kuala Lumpur meeting, and you lost them in 

Bangkok, it's our understanding that you knew that Mihdhar had a 

U.S. visa. And so my question is, why at that point was he not 

put on the TIPOFF watchlist? 

MR. BLACK: Well, I would say that the -- that particular case 

should have been -- should have been. And unfortunately, ma'am, 

very often you'll find my answers going back to -- primarily 

influenced by not enough people and not enough resources. You 

get these people racing around, playing essentially professional 

racquetball and trying to keep up with all of these facts. In 

fact, I would say that there were multiple opportunities where 

we could have watchlisted. 

MS. GORELICK: Yes, I just gave you one. 

MR. BLACK: There was one, but I mean, it goes back to in the 

UAE, when we first came up with copies of the passport and the 

picture. And I would just like to say that having spoken to some 

of the people involved with this, you know, they truly believe 

that this information was passed to the FBI way back in January 

of '01. And you know, they thought they had done it, and they 

acted as if they did --

MS. GORELICK: Quite apart from the FBI -- I mean, I wanted to 

take the FBI --

MR. BLACK: Sure. Yes. 

MS. GORELICK: I purposely asked this question to take the FBI 

out of the equation. 

MR. BLACK: Yeah. Yeah. Yes. 

MS. GORELICK: What we saw, quite frankly, was a geographical 

focus; that once the -- these guys, these operatives, got out of 

a particular geography, they disappeared, and back home here we 

didn't effectuate the hand-off. And so -- I do want to move on -

-
129

MR. BLACK: Yes. 

MS. GORELICK: -- but it's my understanding that we had an 

opportunity then -- and we had others -- to put these two 

operatives, whom we had identified, on the TIPOFF watchlist as 

early as early 2000. Is that right? 

MR. BLACK: Yes, ma'am, it is. 

MS. GORELICK: Now, Mr. Pickard, I want to return to the 

questions that my now-absent colleague Mr. Roemer was asking you 

about the communications with the field. And you indicated that 

in this period of high threat in July, you had -- as part of 

your annual performance review, you talked with the SACs, among 

other things, about terrorism. And you also indicated that you 

had a conference call on July 19th in which you discussed, 

again, a number of other things, but mentioned the terrorist 

threat. And so we are trying to understand what the nature of 

that conversation was and how it was received. 

MR. PICKARD: The July 19th --

MS. GORELICK: Yes. Now what -- I think the way you answered 

Commissioner Roemer -- I don't want to put words in your mouth -

- was that what, you know, these guys -- people who were 

receiving this information have so much coming in to them that 

really sifting what is important is difficult. And I want to 

drill down on the Minneapolis example, because you indicated 

that you called the SAC and you said, "Why didn't you pick up 

the phone and call me?" 

What the people who were working on the Moussaoui case told 

us was that they were desperate to get the attention of 

headquarters. This is after your two conversations with the SACs 

-- desperate. 

MR. PICKARD: Right. 

MS. GORELICK: And they went to the SAC, and they said "Would 

you please call Mike Rolince," the International Terrorism 

Section chief in headquarters, and the SAC wouldn't do it. 

So this is not an issue of sifting, this is an issue of 

disconnect, I think, between the headquarters and the field. 

And I would like you, if you can, to square up that behavior 

with the conversations you think you had with him. 
130

MR. PICKARD: On July 19th, I had all 56 SACs on the phone, 

and I discussed four topics. First off, I discussed with them 

Back to Basics. It was a program that I had instituted with the 

Inspection Division based upon the problems the FBI had with the 

Timothy McVeigh documents to make sure that the employees of the 

FBI understood how pieces of evidence were to be handled, how 

they were to get in our files, and to make sure we did not have 

a recurrence of the Timothy McVeigh. 

The second thing I talked to them about was our new director, 

Director Robert Mueller. I told them that I had a conversation 

with him, that he was enthusiastic about the job. The employees 

of the FBI were looking for who is the new leader who is going 

to take us into the 21st century. And there was quite a bit of 

excitement in the interim between Director Freeh and Director 

Mueller as to who's going to be our new boss; everybody wants to 

know who they work for, and things like that. So I talked to 

them about my conversation with Director Mueller and his 

enthusiasm for the job. 

The next topic I talked about was there was concern expressed 

by the SACs to me. They felt I should be getting out in front of 

the media talking about the good things about the FBI and things 

like that. I told them I was not going to do that. I wanted them 

to get back to putting the "I" back in "FBI" for 

"investigations" and that would increase our presence and 

increase our stature and things like that. 

And then finally, I told them about the threat level. I told 

them about -- that the chatter was still at a high level. I 

didn't have any further information about the chatter level, but 

I expected that at any time we could have a terrorist incident 

and they would be responding somewhere in the world, wherever it 

might be. 

They pulled the records yesterday. The conversation lasted 

approximately 35 minutes. I've given you a two-minute synopsis 

of that. I can't recall with a lot more specificity what 

happened there. 

I don't understand why, but I think -- if I could talk to 

you. On the afternoon of September 11th, we had reports all over 

the map. We had situations where we thought the Department of 

State had been bombed. We thought bombs were going off. We 

thought the Sears Tower was evacuated, and things like that. 
131

I called all 56 SACs again, first off to get an evaluation of 

where we stood, what was happening, where we needed resources 

deployed to, what we could do, and what we could also get back 

to the director so that if he had meetings with the President --

and he had a number of conversations and meetings with the 

President that day, Director Mueller -- I wanted to have the 

best information we had. 

I also asked them, at this time is there anything in our 

files, anybody who came into our offices, anybody -- anything 

that, in light of what happened this morning, September 11, that 

we need to know about, that we need to capitalize on to see 

whether we can prevent any future plots? At that time we were 

worried that is al Qaeda going to do something else tomorrow? 

What is going to be the next thing we're going to get hit with? 

When I asked that, immediately I was told about the 

Minneapolis arrest of Moussaoui. That was about 3:00 in 

September 11. Later that day, I found out about the Phoenix 

memo, and then a couple of days later the agents in New York, 

when we started identifying the hijackers, they called in and 

said: We were looking for Mihdhar and al Nawazi (sic); we didn't 

realize that they were involved in a plot. 

So --

MS. GORELICK: Mr. Chairman, could I have one follow-up 

question, please? 

MR. KEAN: Very brief. 

MS. GORELICK: Very brief. 

MR. KEAN: We're running a little late. 

MS. GORELICK: I'm sorry. But I was silent all morning. 

(Laughter.) 

MR. PICKARD : Doesn't she get extra time? (Laughter.) 

MS. GORELICK: When you found out that Director Tenet had been 

briefed in August about an Islamic extremist learning to fly, 

which was your case, and he knew about it in August and you 

didn't until after September 11th, how did you feel about that? 

And how did you feel about the efficacy of the conversations you 

had with your subordinates in July? 
132

MR. PICKARD: I was very disappointed that, something that 

would go up to the DCI, that I wouldn't hear about. But that was 

because we had a joint terrorism task force in Minneapolis. The 

officer from the CIA who was working on that task force pushed 

that up through their chain. The FBI did not push it up. 

MS. GORELICK: Thank you. 

MR. PICKARD: I also had a conversation with Director Tenet, 

and he did not bring it up to me, though, either, on August 

27th. 

MS. GORELICK: Thank you. 

MR. KEAN: Commissioner Fielding. 

MR. FIELDING: Thank you, Mr. Chairman. 

Ambassador Black, you said earlier that it's important to you 

to be accurate with your customers. And surely the most 

important customer for intelligence information would be the 

President of the United States. And we've had this dialogue 

today about the PDB of August. And I'm curious, what steps do 

you have in place or that are taken to make sure of the accuracy 

of information that your people receive from outside of the CIA? 

MR. BLACK: There's an elaborate vetting process. Information 

is received, raw intelligence is received, it comes in to 

personnel that review it, that do the analysis function. And 

there are those that write articles for numerous publications, 

including the PDB. This particular employee was home-based in 

the Directorate of Intelligence and was serving in the 

Counterterrorism Center. 

So the raw reports are received, we attempt to estimate the 

needs of our customer, and write products that meet their needs. 

MR. FIELDING: But what do you do to check the accuracy of the 

information that comes from outside of your own ambit? 

MR. BLACK: Questions are asked. I believe -- I have not 

spoken to the author of this particular piece. But I understand 

that this officer was in contact with the FBI. In this instance 

I think the assumption would be that the FBI would have 

confidence in the information that it provided. 
133

MR. FIELDING: I just have one more technical question for 

you. 

MR. BLACK: Yes, sir. 

MR. FIELDING: CTC. Is it part of CIA, or is it part of DCI? 

MR. BLACK: Yes, sir. It's called the counterterrorism center. 

MR. FIELDING: Yes. 

MR. BLACK: And as the former director of the counterterrorism 

center I reported to the director of Central Intelligence, but 

also to the deputy director for operations on a dotted line as 

well as a dotted line to the deputy director of intelligence. 

That --

MR. FIELDING: (Inaudible) -- government organizations --

MR. BLACK: -- it's one of these unfortunate jobs where you 

have lots of bosses, and you get lots of advice. 

MR. FIELDING: Okay. I understand. 

Now, you've also spoken about the resources very eloquently, 

and -- your lack of resources, I guess. If you didn't have 

enough resources, did you ask Director Tenet to allocate or 

reallocate funds from lower priorities? 

MR. BLACK: Yes. He was aware of our resource needs. And he 

did -- we were the first among equals of all his highest 

priorities. He did shift resources to us. In fact, when I 

arrived in the counterterrorism center, I believe that the --

we'd had a plus-up of approximately a hundred personnel. We 

regularly discussed this. We were the recipient of significant 

support in comparison to the type of support that he was able to 

provide to other units, my point here being is that the director 

of Central Intelligence did a heroic job with what was 

available, and certainly in comparison to the other competing 

interests. My point here is that, I think as we've discussed 

today, is that this is a very large, formidable target, and that 

we needed to devote more resources to it than the base of the 

Central Intelligence Agency had. 

MR. FIELDING: I understand that this isn't your final 

decision, but from where you're sitting --
134

MR. BLACK: Yes. 

MR. FIELDING: -- is the problem in the intelligence 

community, is the problem in the OMB, or is the problem in 

Congress, as far as limited funding? 

MR. BLACK: I think, from my perspective, it would be all of 

the above and probably more. 

MR. FIELDING: Mr. Pickard, the time that now-Director Mueller 

took over from you and you were the acting director -- did you 

brief him? 

MR. PICKARD: During the summer of 2001, I called Director 

Mueller, first off to congratulate him on being appointed the 

director and offering my support, and told him I'd serve in 

whatever capacity he wanted me to. I also advised him that I 

would be retiring by the end of the year. 

I asked him for what kind of briefings he would want, because 

he was going to not report till September. And as has been 

reported in the press, he was having some surgery. He asked that 

I not brief him on any kind of classified material, because he 

did not feel he would be able to securely maintain it that 

summer. 

When he reported in on September 4th and was sworn in by the 

attorney general, that whole week I had set up a series of 

briefings on classified information for him and also emergency 

procedures, everything from in the event of nuclear war to how 

to call up the Hostage Rescue Team and other things like that, 

that the director, I felt, needed to know as soon as possible 

upon his arrival. 

MR. FIELDING: I see the red light is on, but just may I ask 

you: Is there a written record of the briefings, or are there 

written agendas or things like that that you could supply to the 

Commission and its staff for studying to see what you covered? 

MR. PICKARD: Yeah. I did not participate in those briefings 

with the director. The assistant directors of each of the 

divisions, Counterintelligence and Counterterrorism, did those 

briefings. And I will ask the FBI to see if they can find those 

briefings. 
135

MR. FIELDING: And just as an aside, I noted that you were the 

sixth deputy director in eight years, and then you left at the 

end of that. That must be a tough job. 

MR. PICKARD: Well, I'm proud to say I held the record. I 

lasted two years. 

MR. FIELDING: Thank you, sir. 

Thank you, Mr. Chairman. 

MR. HAMILTON: Final questions will be by Commissioner BenVeniste. 

MR. BEN-VENISTE: Good afternoon, gentlemen. 

Mr. Pickard, on January 21st, you met -- of this year you met 

with our staff. Is that correct? 

MR. PICKARD: Right. That's correct. 

MR. BEN-VENISTE: And according to our staff report, you told 

them that in June 2001 you met with Attorney General Ashcroft, 

and he told you that you would be the acting FBI director. 

MR. PICKARD: That's correct. 

MR. BEN-VENISTE: You had some seven or eight meetings with 

the attorney general? 

MR. PICKARD: Somewhere in that number. I have the exact 

number, but I don't know the total. 

MR. BEN-VENISTE: And according to the statement that our 

staff took from you, you said that you would start each meeting 

discussing either counterterrorism or counterintelligence. At 

the same time, the threat level was going up and was very high. 

Mr. Watson had come to you and said that the CIA was very 

concerned that there would be an attack. 

You said that you told the attorney general this fact 

repeatedly in these meetings. Is that correct? 

MR. PICKARD: I told him at least on two occasions. 
136

MR. BEN-VENISTE: And you told the staff, according to this 

statement, that Mr. Ashcroft told you that he did not want to 

hear about this anymore. Is that correct? 

MR. PICKARD: That is correct. 

MR. BEN-VENISTE: Now let me ask you about this PDB. You never 

vetted the PDB. You never saw the PDB. You never knew that it 

was going to be produced. Correct? 

MR. PICKARD: That's correct. 

MR. BEN-VENISTE: And it would appear that the author or the 

individual at CIA that edited this PDB, by entitling the PDB 

"Bin Ladin Determined to Strike in the United States," wanted to 

get the President's attention because most of the threat 

reporting seemed to be that the heightened alert reflected the 

potential for a threat overseas, and that this was perhaps the 

same syndrome as the white van in the sniper case that we saw, 

where everybody is looking in one direction for one thing but 

not looking in the other direction where something might occur. 

Condoleezza Rice said that when she saw this PDB it was 

certainly not reassuring, and quite clearly we know whether the 

information was right, wrong or in the middle somewhere this 

author was prescient; the attack came in the United States. 

Now my question to you, sir, is that if you had the 

information that the President of the United States was 

requesting what information the FBI had up to that moment about 

the potentiality for a strike by Bin Ladin in the United States, 

would you not have pulsed the FBI to determine from every FBI 

agent in this country what information they had at that moment 

that might indicate the possibility of a terrorist attack here? 

MR. PICKARD: Yes, I would have. 

MR. BEN-VENISTE: And you learned on September 11th three 

things, if I understand your testimony. Number one, you learned 

about Moussaoui. Number two, you learned about the Phoenix memo. 

Number three, you learned about two of the hijackers who were in 

the United States who the FBI was looking for. Had you learned 

that information soon after August the 6th, was there not a 

possibility that you could have utilized that information, 

connected the information, put it together with what you already 

knew, and taken some action? 
137

MR. PICKARD: I don't know. Moussaoui was arrested on August 

15th. The information about the other two hijackers came to the 

FBI's attention I believe August 23rd and later on on August 

27th. To bring these three diverse pieces of information 

together absent the afternoon of September 11th -- I don't know, 

with all the information the FBI collects, whether we would have 

had the ability to hone in specifically on those three items. 

MR. BEN-VENISTE: Certainly if you knew that the President of 

the United States was asking --

MR. PICKARD: I was not informed that the President was 

asking. 

MR. BEN-VENISTE: I understand that, sir. But if you had 

known, would you not have -- I think you've answered my 

question. You would have pulsed the FBI. 

Let me ask you this. Did the President or the attorney 

general of the United States ever ask to meet with you following 

August 6th? 

MR. PICKARD: No. There was a policy that I was not to go to 

the White House unless the attorney general or the deputy 

attorney general or someone from the Department of Justice, 

either I had informed them or they went with me. And that was as 

a result of the Travelgate scandal where the FBI was asked for 

information by the White House. 

MR. BEN-VENISTE: The request never came. And finally, with 

respect, Mr. Black, to the kill-or-capture answer that you gave 

earlier to Secretary Lehman, are you confident that you saw all 

of the instructions signed by President Clinton, as of late 

1998, before you took up your duties at the CT Center in mid1999? 

MR. BLACK: All of the -- all of the memorandums of 

notification --

MR. BEN-VENISTE: Yes. 

MR. BLACK: -- were retained by our lawyers, and I did have 

access to them and to --

MR. BEN-VENISTE: Are you confident that you saw all of them? 

Because, sir, you are mistaken with respect to your answer. 
138

MR. BLACK: Well, I don't know the universe of what you're 

talking -- I don't know what necessarily "all the ones." I know 

the ones that were available to me. Put it that way. 

MR. BEN-VENISTE: The problem was that the one that we are 

referring to here was not made available to us until very 

recently. It was in the Clinton archived materials and was held 

very closely. 

MR. BLACK: Yeah. I don't know what you're referring to, so I 

would have to see it to confirm that I was aware of it. So I 

don't know, sir. 

MR. KEAN: Okay, gentlemen, thank you very much. We appreciate 

your government service, and your attendance here and your help 

with our commission today. 

Thank you very much. 

MR. PICKARD: Thank you. 

PANEL FOUR OF THE TENTH HEARING OF THE NATIONAL COMMISSION ON 

TERRORIST ATTACKS UPON THE UNITED STATES RE: "LAW ENFORCEMENT 

AND THE INTELLIGENCE COMMUNITY" THOMAS H. KEAN, CHAIR; LEE H. 

HAMILTON, VICE CHAIR

WITNESS: ATTORNEY GENERAL OF THE UNITED STATES JOHN ASHCROFT

3:55 P.M. EDT, TUESDAY, APRIL 13, 2004 

MR. KEAN: We now hear from our final witness today, the 

Honorable John Ashcroft, attorney general of the United States. 

Would you please rise, sir, and raise your right hand? 

Do you swear or affirm to tell the truth, the whole truth, 

and nothing but the truth? 

ATTY GEN. ASHCROFT: I do. 

MR. KEAN: Please be seated, sir. 
139

I also recognize Solicitor General Ted Olson and recognize 

it's not easy for you to be here today, sir, and thank you very 

much for coming. 

Mr. Attorney General, your prepared statement will be entered 

into the record in full. And if you could summarize your opening 

remarks, we'd appreciate it. 

ATTY GEN. ASHCROFT: Mr. Chairman, thank you. 

It is with great sorrow that I join this commission today in 

reflection on September 11th, 2001. Even today, 31 months after 

the attacks, I struggle to learn the lessons of that day without 

being overwhelmed by the losses of that day. I feel sorrow for 

the loss of life, sorrow for the loss of promise, sorrow for the 

loss of innocence, sorrow for the loss suffered by a nation that 

is forever scarred. My sorrow for the victims of September 11th 

is equaled only by my rage at their killer. Osama Bin Ladin is 

to blame for my anger. I blame his hatred for our values, his 

perversion of a faith, his idolatry of death. It was his hand 

that took the lives of nearly 3,000 innocents on September 11th. 

It is his face that is the face of evil. 

September 11th revealed not just our enemy's capacity for 

murder, but our fellow Americans' thirst for justice. The men 

and women of the Justice Department have embraced the cause of 

our times: that is, the protection of the lives and liberties of 

Americans. Working within the Constitution we fight any battle, 

shoulder any burden, no matter personal or political what the 

cost, to prevent additional terrorist attacks. And for the time 

being, al Qaeda's slaughter has ceased on America's soil. 

We've been aggressive, we've been tough, and we've suffered 

no small amount of criticism for being tough and our tough 

tactics. We accept this criticism for what it is: the price we 

are privileged to pay for our liberty. 

Had I known a terrorist attack on the United States was 

imminent in 2001 I would have unloaded our full arsenal of 

weaponry against it, despite the inevitable criticism. The 

Justice Department's warriors, our agents and our prosecutors, 

would have been unleashed. Every tough tactic we had deployed 

since the attacks would have been deployed before the attacks. 

But the simple fact of September 11th is this: we did not 

know an attack was coming because for nearly a decade our 

government had blinded itself to its enemies. Our agents were 
140

isolated by government-imposed walls, handcuffed by governmentimposed restrictions, and starved for basic information 

technology. The old national intelligence system in place on 

September 11th was destined to fail. 

This commission can serve a noble purpose. Your 

responsibility is to examine the root causes of September 11th 

and to help the United States prevent another terrorist attack. 

Your duty is solemn and sobering. 

But I, too, have a duty today. I've sworn to tell the whole 

truth, and I intend to fulfill this obligation. Today I will 

testify to four central issues which have not been developed 

fully in the Commission's work and which deserve your attention. 

First, this commission has debated the nature of covert 

action authorities directed at Osama Bin Ladin prior to 2001. In 

February 2001, shortly after becoming attorney general, I 

reviewed these authorities. Let me be clear: my thorough review 

revealed no covert action program to kill Bin Ladin. 

There was a covert action program to capture Bin Ladin for 

criminal prosecution, but even this program was crippled by a 

snarled web of requirements, restrictions and regulations that 

prevented decisive action by our men and women in the field when 

they most needed clear, understandable guidance, and our agents 

and operatives were given instead the language of lawyers. Even 

if they could have penetrated Bin Ladin's training camp, they 

would have needed a battery of attorneys to approve the capture. 

With unclear guidance, our covert action team's risk of injury 

may have exceeded the risk to Osama Bin Ladin. 

On March the 7th, 2001 I met with National Security Advisor 

Condoleezza Rice. I recommended that the covert action 

authorities be clarified and be expanded to allow for decisive, 

lethal action. We should end the failed capture policy, I said. 

We should find and kill Bin Ladin. 

I recall that Dr. Rice agreed and gave Director Tenet the 

responsibility for drafting, clarifying and expanding the new 

authorities. 

My second point today goes to the heart of this Commission's 

duty to uncover the facts. The single greatest structural cause 

for the September 11th problem was the wall that segregated or 

separated criminal investigators and intelligence agents. 
141

Government erected this wall, government buttressed this wall, 

and before September 11th, government was blinded by this wall. 

In 1995 the Justice Department embraced flawed legal 

reasoning, imposing a series of restrictions on the FBI that 

went beyond what the law required. The 1995 guidelines and the 

procedures developed around them imposed draconian barriers --

barriers between the law enforcement and intelligence 

communities. The wall effectively excluded prosecutors from 

intelligence investigations. The wall left intelligence agents 

afraid to talk with criminal prosecutors or agents. In 1995 the 

Justice Department designed a system that was destined to fail. 

In the days before September 11th, the wall specifically 

impeded the investigation of Zacarias Moussaoui, the 

investigation of Khalid al Mihdhar and of Nawaf al Hazmi. After 

the FBI arrested Moussaoui, agents became suspicious of his 

interest in commercial aircraft and sought approval for a 

criminal search warrant to search his computer. The warrant was 

rejected because FBI officials feared breaching the wall. 

When the CIA finally told the FBI that al Mihdhar and al

Hazmi were in the country in late August, agents in New York 

searched for the suspects. But because of the wall, FBI 

headquarters refused to allow criminal investigators who knew 

the most about recent al Qaeda attacks to join the hunt for 

suspected terrorists. At that time, a frustrated FBI 

investigator wrote headquarters -- and I'm quoting -- "Whatever 

has happened to this, someday somebody -- someone will die, and 

wall or not, the public will not understand why we were not more 

effective in throwing every resource we had at certain problems. 

Let's hope the National Security Law Unit will stand behind 

their decision then, especially since the biggest threat to us, 

UBL, is getting the most protection." 

FBI headquarters responded -- and I quote -- "We're all 

frustrated with this issue. These are the rules. NSLU does not 

make them up." 

But somebody did make these rules. Somebody built this wall. 

The basic architecture for the wall in the 1995 guidelines was 

contained in a classified memorandum entitled "Instructions for 

Separation of Certain Foreign Counterintelligence and Criminal 

Investigations." The memorandum ordered FBI Director Louis Freeh 

and others, quote, "we believe that it is prudent to establish a 

set of instructions that will more clearly separate the 
142

counterintelligence investigation from the more limited but 

continued criminal investigations. 

These procedures, the memo went on to say, which go beyond 

what is legally required, will prevent any risk of creating an 

unwarranted appearance that FISA is being used to avoid 

procedural safeguards which would apply in a criminal 

investigation. 

This memorandum laid the foundation for a wall separating the 

criminal and intelligence investigations, as a matter of fact 

established the wall following the 1993 World Trade Center 

attack, which at the time was the largest international 

terrorism attack on American soil, the largest prior to 

September 11th. 

Although you understand the debilitating impacts of the wall, 

I cannot imagine that the Commission knew about this memorandum. 

So I have had it declassified for you and the public to review. 

Full disclosure compels me to inform you that the author of this 

memorandum is a member of the Commission. 

By 2000, the Justice Department was so addicted to the wall, 

it actually opposed legislation to lower the wall. Finally, the 

USA PATRIOT Act tore down this wall between our intelligence and 

law enforcement personnel in 2001. And when the PATRIOT Act was 

challenged, the FISA Court of Review upheld the law, ruling that 

the 1995 guidelines were required by neither the Constitution 

nor the law. 

The third issue I'd like to raise with the Commission this 

afternoon is another limitation government placed on our ability 

to connect the dots of the terrorist threat prior to September 

11, and it was the lack of support for information technology at 

the FBI. After I became attorney general in February 2001, it 

became clear that the FBI's computer technology and information 

management was in terrible shape. The Bureau essentially had 42 

separate information systems, none of which were connected. 

Agents lacked access to even the most basic Internet technology. 

These problems didn't just hamper interagency communication, 

they hindered information sharing in the Justice Department, the 

intelligence community and communication with state and local 

law enforcement. It's no wonder, given the state of this 

technology, that the Phoenix memo warning that terrorists may be 

training in commercial aviation was lost in the antique 

computers at the Washington headquarters. 
143

Yet for year after year, the FBI was denied funds requested 

for its information technology. Over eight years, the Bureau was 

denied nearly 800 million (dollars) of its information 

technology funding requests. To put this $800 million shortfall 

in perspective, the Trilogy program, which is now 

revolutionizing the computer system at the Bureau -- the data 

and information sharing at the Bureau, has cost 580 million 

(dollars). 

On September 11, 2001, the FBI's annual technology budget 

under the prior administration was actually $36 million less 

than the last Bush budget eight years before. The FBI's 

information infrastructure had been starved, and by September 

11th it was collapsing from budgetary neglect. 

When the Hanssen and McVeigh failures fully exposed this 

neglect and its cost to national security, I ordered four 

independent external reviews of the FBI's information 

infrastructure under the coordination of Deputy Attorney General 

Larry Thompson. I'm pleased that Larry is here in the audience 

today. And my first two budgets, both proposed before 9/11, 

requested a 50 percent increase for FBI information technology. 

Finally, the Commission should study carefully the National 

Security Council plan to disrupt the al Qaeda network in the 

U.S. that our government failed to implement fully 17 months 

before September 11. This NSC Millennium after-action review 

declares that the United States barely missed major terrorist 

attacks in 1999, and cites luck as playing a major role. Among 

the many vulnerabilities in homeland defenses identified, the 

Justice Department surveillance and FBI -- pardon me -- FISA 

operations were specifically criticized in the after-action 

assessment of the Millennium approach. They were criticized for 

what were identified as glaring weaknesses. It is clear from the 

review that actions taken in the Millennium period should not be 

the operating model for the U.S. government. 

In March of 2000, the review warns the prior administration 

of a substantial al Qaeda network and affiliated foreignterrorist presence within the U.S. capable of supporting 

additional terrorist attacks here. Furthermore, fully 17 months 

before the September 11th attacks, the review recommends 

disrupting the al Qaeda network and terrorist presence here 

using immigration violations, minor criminal infractions, 

tougher visa and stronger border controls. 
144

Now, these are the same aggressive, often-criticized law 

enforcement tactics that we have unleashed for 31 months to stop 

another al Qaeda attack. These are the same tough tactics we 

deployed to catch al Marri who was sent here by al Qaeda on 

September 10th, 2001 to facilitate a second wave of terrorist 

attacks on Americans. 

Now, despite the warnings and the clear vulnerabilities 

identified by the NSC in 2000, no new disruption strategy to 

attack the al Qaeda network within the United States was 

deployed. It was ignored in the Justice Department's five-year 

counterterrorism strategy. 

I did not see this highly classified review before September 

11th. It was not among the 30 items upon which my predecessors 

briefed me in transition. It was not advanced as a disruption 

strategy to me during the summer threat period by the NSC staff, 

the staff which had wrote the review more than a year earlier. 

I certainly cannot say why the blueprint for security was not 

followed in the year 2000. I do know from my personal experience 

that those who take the kind of tough measures called for in the 

plan will feel the heat. I've been there; I've done that. So the 

sense of urgency simply may not have overcome concern about the 

outcry and criticism which follows such tough tactics. 

I am aware that the issues I have raised this afternoon 

involve at times painful introspection for this commission and 

for the nation. 

I have spoken out today not to add to the nation's 

considerable stock of pain, but to heal our wounds. This 

commission's heavy burden to probe the causes of September 11th 

demand that the record be complete. Our nation's heavy burden to 

learn from the mistakes of the past demands that this commission 

seeks the whole truth. May this commission be successful in its 

mission, and may we learn well the lessons from history. 

I thank the members of the Commission for their service and 

for the opportunity to be here and testify today. 

MR. KEAN: Thank you very much, general. 

Questioning today will be led by Governor Thompson. 
145

MR. THOMPSON: General, does a member of your staff have the 

copy of this declassified memorandum about the walls? And if so, 

could we have it? 

ATTY GEN. ASHCROFT: I believe the memorandum is available, 

and we'd be glad to provide it to the Commission. 

MR. THOMPSON: Okay. While they're searching for that, let me 

ask some questions. And let's start with this walls business. 

Let me read you one paragraph from the prepared statement of 

your predecessor, General Reno, that I asked her about this 

morning, and then ask for your comment on it. She said: 

"There are simply no walls or restrictions on sharing the 

vast majority of counterterrorism information. There are no 

legal restrictions at all on the ability of members of the 

intelligence community to share intelligence information with 

each other. With respect to sharing between intelligence 

investigators and criminal investigators, information learned as 

a result of the physical surveillance or from a confidential 

informant can be legally shared without restriction. While there 

were restrictions placed on information gathered by criminal 

investigators as a result of grand jury investigations or Title 

3 wire taps, in practice they did not prove to be a serious 

impediment, since there was very little significant information 

that could not be shared." 

When you took office, sir, in 2001, was that your 

understanding of the wall? 

ATTY GEN. ASHCROFT: No, I believe that the understanding of 

the wall that was prevalent in the Justice Department and among 

attorneys was that individuals who shared information from a 

criminal file or from an intelligence file to a criminal file 

might be subject to serious discipline. And the memorandum of 

which I spoke, which was crafted in 1995, specifically indicated 

that it was based on an understanding at that time held that the 

law would not countenance certain exchanges. I believe it was a 

mistaken impression of the law which was later corrected by the 

rulings of the FISA Court of Appeals. But if you'll look through 

the history of what happened, just in the cases surrounding 

9/11, time after time you find individuals being advised by 

their superiors that they could not or should not be involved in 

activity because such involvement would breach the wall. I cited 

both the Mihdhar and Hazmi cases together with the Moussaoui 

case, each case where advice was given to individuals who wanted 
146

to be more active in their pursuit of individuals, that they 

should restrain themselves in their pursuits because of the 

wall. 

So it's my clear belief that the wall itself developed this 

culture which restrained in a substantial way the exchange of 

information in the intelligence and law enforcement communities. 

The Bellows Report, which was part of some recommendations 

following the Wen Ho Lee case, indicated that it was part of the 

culture at the FBI that if one made a mistake and shared 

information that was later deemed to be inappropriate, it was 

called a “career-ender” -- so that the risk of a person sharing 

information improperly was at least known in the culture of the 

law enforcement community to be a very substantial risk, and 

that individuals should shy away from sharing. 

Now, let me just say that when we enacted the PATRIOT Act, we 

did so believing that this culture needed to have a clear signal 

that the wall did not, and should not, inhibit this kind of 

cooperation. The PATRIOT Act did take down the wall. Later on, 

one of the courts, the FISA court, reasserted that the wall was 

not really effectively lowered by the PATRIOT Act, and I made a 

decision to appeal that decision. The appeal from the lower FISA 

court's ruling is what finally established the legal principle 

that the wall, as a matter of fact, is of little or no effect 

now. 

MR. THOMPSON: General, we've heard testimony today which is 

at best confusing and at worst conflicting, and which I think 

will probably, to the American public at least, who may or may 

not understand the federal budgeting procedures, prove to be 

distressful. 

Can you lay out in timelines, if you can, what budget 

requests were made by the FBI to you and for what purposes, and 

what actions were either taken by you to grant or deny them, or 

taken by OMB after your decision on budgetary requests for the 

FBI? 

And then, secondly, if you would, and can, contrast them with 

similar requests of the FBI and similar actions by the attorney 

general during prior administrations. 

ATTY GEN. ASHCROFT: Well, first of all, it's important to 

note that the budget under which we were operating on September 

11th was a budget established by the prior administration. No 

budget of the Bush administration was in place on September 
147

11th, and none had finally been enacted or put in place. So the 

proposals for subsequent years, which were developed and were in 

place, were under construction. But they were not the budgets 

that were controlling activity on September 11th or at any time 

prior thereto. 

As it relates to the counterterrorism effort, the 2002 budget 

-- we were operating under the 2001 budget on 9/11. The 2002 

budget proposed by President Bush had the largest 

counterterrorism increase in five years. The 2003 budget which 

we proposed was a 13 percent increase over the last Clinton 

budget, the 2001 budget, which was the budget under which we 

were operating at the time of 9/11. Now over time, obviously 

after 9/11, there were amendments to the budget process, and 

there were increases, and so that we ended up with substantially 

larger increases for terrorism than we had previously had. 

I would just indicate in the budgeting process that the label 

of counterterrorism should not be controlling when assessing 

whether or not items were important to the development of a 

defense for our national security interests vis-à-vis

counterterrorism, counterintelligence or other things that 

challenge the United States. For example, the information 

technology budget at the FBI is very important. An organization 

that is an intelligence organization, investigation organization 

needs to have an architecture of information that provides for 

information sharing and information communication so that the 

information regarding IT should be included in budgets. 

Now, as it relates to information technology, the agency had 

been -- the FBI, for example, had been starved for years. The 

last Clinton administration budget was $36 million lower than 

the last budget of the first Bush administration eight years 

earlier. So that when you came to the ability to run information 

and to exchange it and process it, you were working with 1980stype equipment. 

After 9/11, the cooperation on the budget was significant to 

provide serious assistance not only in counterterrorism but as 

it related to information technology, as well. I think Director 

Mueller has stated that we have worked in lockstep to meet the 

needs of the FBI. And its progress toward an integrated 

architecture of information sharing is substantial and 

significant and, frankly, is gratifying. I'm glad that they've 

been able to make the progress they have. 
148

MR. THOMPSON: Acting Director Pickard testified this 

afternoon that he briefed you twice on al Qaeda and Osama Bin

Ladin, and when he sought to do so again, you told him you 

didn't need to hear from him again. Can you comment on that, 

please? 

ATTY GEN. ASHCROFT: First of all, Acting Director Pickard and 

I had more than two meetings. We had regular meetings. Secondly, 

I did never speak to him saying that I did not want to hear 

about terrorism. I care greatly about the safety and security of 

the American people and was very interested in terrorism, and 

specifically interrogated him about threats to the American 

people, and domestic threats in particular. 

One of the first items which came to my attention, which I 

mentioned in my opening remarks, was the question of whether we 

wanted to capture or find and kill Bin Ladin. I carried that 

immediately to the national security advisor and expressed 

myself in that matter. Together with the Vice President of the 

United States, we got a briefing at FBI headquarters regarding 

terrorism, and I asked the question, "Why can't we arrest these 

people?" because I believe an aggressive arrest and prosecution 

model is the way to disrupt terrorism. These are things about 

which I care deeply. 

When the Senate Appropriations Committee met on May the 9th 

in the summer of 2001, I told the committee that my number-one 

priority was the attack against terror; that we would protect 

Americans from terror; and I wrote later to them a confirming 

letter saying that we had no higher priority. 

These are the kinds of things that I did in order to 

communicate very clearly my interest in making sure that we 

would be prepared against terror. In addition, when we went for 

the largest increase in counterterrorism budgeting before 9/11, 

in the last five years, that signaled a priority in that 

respect. And when we, for the next year, had a 13-percent higher 

counterterrorism budget than was provided in the last year of 

the Clinton administration, it was also a signal that 

counterterrorism was a matter of great concern to us and that we 

would treat it seriously. 

MR. THOMPSON: After you took office, did you ever hear or 

participate in any discussions in the Bush administration about 

responding to the attack on the Cole, which took place late in 

the Clinton administration, since it was now apparent, at some 

time in 2001, that not only was al Qaeda responsible for the 
149

attack on the Cole, but that Osama Bin Ladin directed it? Was 

there ever any such consideration given in the Bush 

administration to responding to the attack on the Cole with a 

military strike? 

ATTY GEN. ASHCROFT: Well, I was briefed by the CIA on a 

number of occasions, as well as by the FBI, and I did ask about 

the Cole. As you know, our FBI personnel were on the scene 

within almost hours after the event, and they developed a 

preliminary understanding that individuals conducting the attack 

were associated with al Qaeda. But the ability to come to a 

conclusion to build the nexus back from those actually involved 

in the attack to those who were command-and-control figures in 

al Qaeda was not established until -- and I'm not sure of the 

date. I think it must have been late in the summer or early in 

the fall of 2001. 

So my briefings through the summer during the elevated threat 

period, and the like, and my briefings that were earlier in the 

year, for instance at the FBI, communicated this believed nexus 

in terms of the operational involvement of individuals 

associated with al Qaeda but they did not have a clear, 

considered, provable understanding of whether the command and 

control of senior al Qaeda officials was really involved. 

MR. THOMPSON: What provisions of the PATRIOT Act that are due 

to expire next year or sunset next year do you deem to be of 

greatest importance for reenactment? And are there additions or 

subsequent amendments to the PATRIOT Act that you think should 

be considered by the Congress next year? 

ATTY GEN. ASHCROFT: Well, the PATRIOT Act, one of its most 

important contributions was to help us to tear down the wall. 

The multi-point wiretap is very important. It extended --

MR. THOMPSON: That's the roving wiretap authority? 

ATTY GEN. ASHCROFT: Roving wiretape. This is something that 

had been available in the criminal law since 1986 regarding what 

was drug dealers and organized criminals. Our ability to use a 

roving wiretap is important. 

Our ability to have national search warrants so that we don't 

have to -- for individuals who are mobile -- get new search 

warrants. The pen register trap and trace for e-mail is a very 

important thing. 
150

These provisions of the PATRIOT Act are important to national 

security. And for this country to begin to forget that national 

security requires a robust capacity for law enforcement would be 

a major tragedy. 

There are some things that I think could be added that would 

be helpful to us. The "material support for terror” statute 

could be clarified so as to make sure that individuals who are 

involved in contributing their services are actually providing 

material support. 

The presumption against bail for terrorists. For serious drug 

offenders and violent criminals we have a presumption against 

bail in the law, and for a number of offenses. But there's no 

presumption against bail -- not meaning that there couldn't be 

bail granted, but meaning that there ought to be a presumption 

that a person involved in serious -- with serious charges of 

terrorism be restrained. 

I believe that we should accord to terrorist investigators 

administrative subpoena power for certain kinds of business 

records. There are 335 different administrative subpoena 

authorities in the country regarding everything from nursing 

home fraud to a variety of other criminal or federal violations, 

whether they be healthcare fraud or crimes related to children. 

I believe if those authorities work against individuals in 

those areas, that we should have them as tools in our fight 

against terror. 

The death penalty, which is not automatic obviously and 

shouldn't be automatic, but we should have an availability of 

the death penalty in certain terrorism crimes resulting in 

death. Currently we have some terrorism crimes that may well 

result in death that wouldn't be punishable by the death 

penalty, and I think that's one of those areas where we would be 

well served to expand the authority of our government to act 

against terror. 

MR. THOMPSON: General, one last question before the chairman

gavels me down. I see his eye on the red light and so is mine. 

Sometimes in this country we prey -- we fall victim to the 

notion of fighting the last war, and my guess is Osama Bin Ladin

and al Qaeda are not going to fight the last war; they're going 

to fight a new war, perhaps, in the future. We've responded with 

greatly increased security precautions to the hijackings that 
151

took place on September 11th, but who in the government -- who 

in the Bush administration is worrying about the next war and 

other means that al Qaeda may use to attack us -- or other 

groups -- Hezbollah, Hamas, other groups -- on our soil, on 

other portions of our infrastructure besides aircraft and 

airports? Our food supply, our water supply, our oil pipelines, 

our railroads, our chemical factories, who's worrying about that 

and how are they worrying about that, and what assurance do the 

American people have that somebody is indeed worrying about the 

next war? 

ATTY. GEN. ASHCROFT: Well, frankly, there are a number of us 

who are worrying about the next war, and we understand that al 

Qaeda is very likely to change its method of operation and its 

style or avoid detection. And it's something when -- we have to 

understand the nature of this enemy that we face. It's an enemy 

that is not stupid. This is not some garden-variety criminal who 

is robbing a 7-11. They plan well. They undertake actions that 

last for years. They seek to inflict mass casualties. They have 

-- we understand that they might seek to use a different style 

of individual, individuals who would come from different 

countries. 

It's clear that they -- we know that they have interest in 

poisons, that they have interest in toxicity, in evil chemistry 

and evil biology as well as the interest which they have had in 

explosives. We've seen a wide variety of explosives used around 

the world in the proliferation of terrorism that has followed 

9/11. 

It's not been used here, and we're grateful that we've been 

successful in keeping it from happening here. But this 

Administration has tasked every quadrant of the Administration

to be alert. In Agriculture, I know very much the concerns of 

Secretary Veneman, I know in Transportation the concerns of 

Secretary Mineta. I know in Energy the kinds of concerns that 

have been expressed by Secretary Abraham, and the list could go 

on completely. I guess I would say that we need to continue to 

do everything possible. We look around the world and we see that 

even in cultures that are very attuned and very focused on 

disrupting terrorism, that they are not always successful. And 

so we have to be at the highest level of readiness and 

anticipation. 

MR. THOMPSON: Thank you, general. 

Thank you, Mr. Chairman. 
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MR. KEAN: Commissioner Ben-Veniste. 

MR. BEN-VENISTE: Good afternoon, General Ashcroft. I want to 

say hello to Larry Thompson, and to Mr. Olson my renewed 

condolences. 

I believe in your statement, General Ashcroft, with respect 

to the failed capture policy of the prior administration, that 

you may be incorrect. I don't believe that you have seen the MON

that we have recently received as of last week which had not 

been previously made available to us. And I will leave that for 

others to discuss. We've got to tiptoe around it for obvious 

national security and classification reasons. But you may be 

enlightened by reviewing that document. 

Let me ask you about the August 6th PDB memorandum, sir. It 

is correct, is it not, that you did not receive that document 

contemporaneously. 

ATTY GEN. ASHCROFT: I did not receive that document in the 

August 2001 time frame. 

MR. BEN-VENISTE: When was the first you had seen it? 

ATTY GEN. ASHCROFT: I think I saw that in the last several 

days. 

MR. BEN-VENISTE: And so, unlike in the previous 

administration, the attorney general of the United States in the 

Bush administration was not a recipient of the PDB memorandum. 

Is that correct? 

ATTY GEN. ASHCROFT: Not prior to 9/11. 

MR. BEN-VENISTE: Nine-eleven. 

ATTY GEN. ASHCROFT: Yeah. 

MR. BEN-VENISTE: That has changed since? 

ATTY GEN. ASHCROFT: I am involved regularly with the briefing 

of the President in regard to terrorist threats, and I accompany 

the director of the FBI to a morning briefing with the 

President, which briefing is attended by the director of the CIA 

and other officials, including director of Homeland Security. 

And I think you're familiar with that. I need not --
153

MR. BEN-VENISTE: Yes, I am, sir. If you'd put yourself back 

in time to August, early August of 2001, aside from not 

receiving the PDB, were you made aware from any source that the 

President of the United States had requested a briefing with 

respect to the potential for an attack by Bin Ladin in the 

United States? 

ATTY GEN. ASHCROFT: This was the kind of information I was 

asking when I was briefed by the CIA and when I was briefed by 

the FBI. 

MR. BEN-VENISTE: But --

ATTY GEN. ASHCROFT: I was not aware that the President of the 

United States had made a request in that respect. 

MR. BEN-VENISTE: Now had you been aware, would you not have 

made sure that the President received a comprehensive report 

from the FBI? 

ATTY GEN. ASHCROFT: Any time the President would ask for the 

-- for information from the FBI, it would have been my intention 

to provide the President with a comprehensive report from the 

FBI. We are not into giving the President less than 

comprehensive responses. 

MR. BEN-VENISTE: I understand that, sir. 

ATTY GEN. ASHCROFT: And had the President asked the FBI for 

information and I'd been aware of it -- and I would have 

expected to have been aware of it -- I would have encouraged the 

FBI to be comprehensive. 

MR. BEN-VENISTE: Now we received some very, very interesting 

information from acting Director Pickard just a few moments ago. 

Mr. Pickard testified that as of the afternoon of September 

11th, 2001, he received three things that he did not know 

before. Number one, he received the Phoenix memorandum. Number 

two, he received information about the Moussaoui arrest and the 

detailed background that I won't go into now, about who 

Moussaoui was and what we knew about why he was in the United 

States. And he received information that the FBI was looking for 

Mihdhar and al Hazmi, two of the individuals who, it turned out, 

participated in the 9/11 catastrophe. 

Now given that fact and given the fact that, as I understand 

it from our prior meeting, you also did not know any of that 
154

information prior to 9/11, is it not possible, sir, that were 

you to have pulsed the FBI and directed the FBI to push up any 

information that it might have had, that that information might 

have been made available to you, to Mr. Clarke, to others, 

contemporaneous in August and prior to 9/11? 

ATTY GEN. ASHCROFT: I think it's pretty clear that I was 

pulsing the FBI. I asked them regularly in my briefings with 

them if there were any evidence regarding threats domestically. 

And the kind of conduct by the FBI was the kind of thing that I 

would have expected them to be involved in as a result of that 

kind of request on my part. When you look at their conduct in 

asking twice in April for information relating to Sunni 

extremism, working the conference of the special agents in 

charge, when you relate to the telephone calls provided, made by 

the individuals, when you look at the INLETS, you get the kind 

of activity on the part of the organization that is designed to 

respond to leadership that is saying, "Is there any information 

about a threat?" And you would expect, having conducted that 

kind of pulsing, that if there were information, that it would 

be made available. 

MR. BEN-VENISTE: Well, obviously, we know it wasn't made 

available. So the question is, were you familiar with the 

dysfunctionality of the FBI, as a result either of your first 

months in office or as a result of your great experience in 

Washington, in the United States Senate and elsewhere --

ATTY GEN. ASHCROFT: Do you want to repeat that part about the 

great experience that I had in the United States Senate? And 

"elsewhere" will have to be referring to something else, because 

I spent my previous time as a colleague of the gentleman on your 

left there, who was the governor in the neighboring state to me. 

MR. BEN-VENISTE: I see. 

ATTY GEN. ASHCROFT: I stood in the shadow of a man known as 

"Big Jim Thompson." 

MR. BEN-VENISTE: Well --

ATTY GEN. ASHCROFT: Let's go back to your --

MR. BEN-VENISTE: So I take that back and I take your point 

that you were not well-versed, then, in the ways of Washington, 

and particularly with respect to the problems of the FBI in 

connection with disseminating information. The statement that 
155

we've heard time and again is that the FBI didn't know what it 

didn't know, but it also didn't know what it did know. 

ATTY GEN. ASHCROFT: Well, if I might comment on that, in my 

opening remarks I talked about the fact that I had demanded four 

separate independent reviews regarding the information systems 

at the FBI, so that I was aware of the challenges. 

The first of those challenges was revealed to me when on the 

day of my going to Justice Department as attorney general, Louis 

Freeh pulled me aside and said, oh, by the way, we've got a real 

problem with a penetration of the FBI. We believe the individual 

involved to be Robert Hanssen. And access to our information 

systems that compromises the national integrity was revealed. 

That was a signal to me that we had serious problems. 

Later on I came to an understanding when we were preparing to 

deal with the second largest terrorist attack in the United 

States, which was that undertaken by Timothy McVeigh, which 

resulted in the death of about 170 people, that in his trial we 

had failed to comply with a court order and we had not delivered 

-- the FBI had not delivered about 3,000 documents, most of 

which were duplicates but were the subject of a court order. So 

I had to delay -- I had to delay the execution to make sure we 

had an innocent system as well as a guilty defendant in the 

case. 

Additionally, I became concerned about the integrity of our 

information technology system when it was revealed that about 

300 laptop computers were unaccounted for, and for well over 200 

of them the inspector general of the FBI, whom I asked to 

investigate the matter, said it couldn't be determined whether 

they were lost or stolen, and raised the specter of national 

security issues. 

So I understood there were problems. But I also understood 

that when we went to agents and when we asked them specific 

questions about issues related to national security that we 

should expect them to respond, and could expect them to respond. 

The FBI is populated with well-meaning, hard-working individuals 

and they, I think, need to be understood for that, and to be 

credited for that. 

MR. BEN-VENISTE: I agree with you, sir. The problem was in 

the communication of information, which did not reach those who 

might have made a difference. 
156

Let me ask you, as my time is expiring, one question which 

has been frequently put to members of this commission. Probably 

all of us have heard this one way or another and the -- we are 

mindful that part of the problem with the Warren Commission's 

work on the Kennedy assassination was the failure to address 

certain theories that were extant, and questions, and much of 

the work was done behind closed doors. So I would like to 

provide you with the opportunity to answer one question that has 

come up repeatedly. 

At some point in the spring or summer of 2001, around the 

time of this heightened threat alert, you apparently began to 

use a private chartered jet plane, changing from your use of 

commercial aircraft on grounds, our staff is informed, of an FBI 

threat assessment. 

And indeed, as you told us, on September 11th itself you were 

on a chartered jet at the time of the attack. Can you supply the 

detail, sir, on -- regarding the threat which caused you to 

change from commercial to private, leased jet? 

ATTY. GEN. ASHCROFT: I'm very pleased to address this issue. 

MR. BEN-VENISTE: Thank you. 

ATTY. GEN. ASHCROFT: Let me just indicate to you that I never 

ceased to use commercial aircraft for my personal travel. My 

wife traveled to Germany and back in August. My wife and I 

traveled to Washington, D.C. on the 3rd of September, before the 

17th -- before the 11th attack, on commercial aircraft. I have 

exclusively traveled on commercial aircraft for my personal 

travel, continued through the year 2000, through the entirety of 

the threat period to the nation. 

The assessment made by the security team in the Department of 

Justice was made early in the year. It was not related to a 

terrorism threat as a threat to the nation. It was related to an 

assessment of the security for the attorney general given his 

responsibilities and the job that he undertakes, and it related 

to the maintenance of arms and other things by individuals who 

travel with the attorney general. And it was their assessment 

that we would be best served to use government aircraft. These 

were not private, chartered jet aircraft; these were aircraft of 

the United States government. And it was on such an aircraft 

that I was on my way to an event in Milwaukee on the morning of 

September the 11th. 
157

MR. BEN-VENISTE: Well, I'm pleased to have been able to give 

you the opportunity to clarify that issue for all who have 

written to this commission and communicated in other ways about 

their questions about that, sir. 

Let me also give you the opportunity to respond to Mr. 

Pickard's testimony just a little while ago about a statement 

which he claims that you made with respect to priorities. And in 

that regard, it is correct, is it not -- because we have looked 

at the May 10th, 2001 guidance for preparing fiscal year 2003 

budgets in which you indicate your priorities. There are five 

goals -- strategic goals laid out there. 

It does not appear that terrorism was one of them. Is that 

correct? 

ATTY GEN. ASHCROFT: Let -- let me make an explanation here, 

because I think -- I welcome as well this opportunity. 

On the day preceding, on May the 9th, I met with the Senate 

Appropriations Committee and was asked about my priorities. I 

said my number one priority was to protect the people of the 

United States against terrorism. 

The Department of Justice, required by the Congress to have a 

strategic plan, followed that plan. The plan was developed in 

the year 2000 by my predecessor and had a set of strategic 

goals. They're listed here early in the book, and they're 

similar to the goals. They are, as a matter of fact, the goals 

which were used in large measure for the May 10th memorandum. 

And they cite some additional goals to terrorism. There's no 

question about that. 

Let me just go, because our time is limited, let me --

MR. BEN-VENISTE: Yes. I'm sorry. Did you say in the prior 

plan there were citations to counterterrorism? 

ATTY GEN. ASHCROFT: Well, there was no major goal of 

counterterrorism, but under -- let's not sell Ms. Reno short. 

Under the first --

MR. BEN-VENISTE: She's not short. 

ATTY GEN. ASHCROFT: Pardon? 

MR. BEN-VENISTE: I can testify, she's not short. (Laughter.) 
158

ATTY GEN. ASHCROFT: Well, I won't make any personal comment. 

MR. BEN-VENISTE: I'm short. (Laughter.) 

ATTY GEN. ASHCROFT: But we -- and under the Keep America Safe 

By Enforcing Federal Criminal Laws she did have deter and detect 

terrorist incidents, and this is the kind of -- let me just cut 

to the chase here to see where we were. Let our money do the 

talking. 

In the budgets proposed prior to September 11th, the total CT 

increases were 72 percent greater than the total increases for 

drugs and gun prosecutions combined. Now, those were the other 

issues that were listed as priorities of the department. What we 

had was a combined total of increases of $683.1 million for 

drugs and gun prosecutions. 

We had a combined counterterrorism-related budget increase of 

one billion, one hundred and seventy-five-point-two million 

dollars -- 72 percent higher for counterterrorism-related items 

than for items related to the other priorities which we had 

stated -- drug interdiction and the prosecution of gun

criminals. 

Now, I don't mean to discount those priorities. Thousands of 

people die on our streets as a result of gun crimes. And we're 

very grateful for our record there. But let the record be clear 

that when it comes to where the appropriation was, that we had a 

$1.175 billion increase for counterterrorism in those first two 

budgets, a .683 billion or $683 million increase on drugs and 

guns. 

MR. KEAN: Senator Gorton. 

MR. BEN-VENISTE: Thank you, General. 

MR. GORTON: Mr. Attorney General, in your written statement 

you have four issues that you discuss. The first one is your 

criticism of the lack of aggressive enough authorities for 

decisive action against Osama Bin Ladin. And you state that on 

March 7, 2001, you recommended that those authorities be 

expanded to allow for decisive lethal action. 

To the best of your knowledge, between that date and 

September 11th 2001, were those authorities expanded in any 

respect whatsoever? 
159

ATTY GEN. ASHCROFT: It's my understanding that an assignment 

was made by the national security advisor to the director of the 

Central Intelligence Agency to work on that, and that a judgment 

was reached that rather than a specific change, that any change 

should be made as part of an integrated new set of directives. 

MR. GORTON: I take that as an answer in the negative. 

Your second issue is a severe criticism of the 1995 

guidelines that, as you say, imposed draconian barriers to 

communications between law enforcement and the intelligence 

committees (sic) -- the so-called wall. 

I don't find that in the eight months before September 11th, 

2001 that you changed those guidelines. In fact, I have here a 

memorandum dated August 6th, from Larry Thompson, the fifth line 

of which reads, "The 1995 procedures remain in effect today." 

If that wall was so disabling, why was it not destroyed 

during the course of those eight months? 

ATTY GEN. ASHCROFT: The August 6th memorandum of Deputy 

Attorney General Larry Thompson made possible significantly more 

information- sharing by mandating that those individuals 

involved in intelligence investigations who came across 

information relating to a felony federal offense immediately 

provide notice of that felony federal offense to people on the 

criminal side of the house. 

It was a step in the direction of disabling the wall. It was 

a step in the direction of lowering the wall, providing for 

greater communication. 

MR. GORTON: But it was after August 6, 2001, that Moussaoui 

was picked up and the decision was made in the FBI that you 

couldn't get a warrant to search his computer. So those changes 

must not have been very significant. 

ATTY GEN. ASHCROFT: I missed your question, Commissioner. 

MR. GORTON: Well, you know, you say as a part of your 

criticism of the 1995 guidelines, after the FBI arrested 

Moussaoui, agents became suspicious of his interest in 

commercial aircraft and sought approval for a criminal warrant 

to search his computer. The warrant was rejected because FBI 

officials feared breaching the wall, yet that was after these 

changes that you say were significant on August 6th. 
160

ATTY GEN. ASHCROFT: Let me explain to you what I believe was 

the rationale of the FBI at that time. The FBI feared that if 

they went forward with a criminal warrant, that later, in the 

event that a FISA warrant was needed, because a track had been 

chosen which was a criminal track rather than an intelligence 

track, that they would not be able to access the information 

they would otherwise want through a FISA. So the FBI, mistakenly 

believing that you had to choose one way or the other because of 

the wall, decided to deny the criminal warrant in order to 

protect the option later on for a FISA. 

Now, the Moussaoui case reflects not a federal felony offense 

that would be covered under the authority of the memorandum sent 

forward by the deputy attorney general. The Moussaoui case 

involved an immigration violation, and he was detained on the 

basis of that violation and in conjunction with what was 

considered suspicious behavior, but not in conjunction with what 

provided the basis for evidence of a federal felony. 

MR. GORTON: And finally, the fourth -- the third of your 

issues has to do with the computer authority, and which 

obviously you did take very, very positive action very early. 

But the fourth that refers to the millennium after-action 

review and its recommendations about disrupting the al Qaeda 

network -- and as you point out, full seven -- fully 17 months 

before September 11th, the review makes these recommendations. 

Nine of those months were in the Clinton administration. Eight

of them were in yours. Did you make any changes reflecting that 

millennium after-action review in your time as attorney general, 

before 9/11? 

ATTY GEN. ASHCROFT: This is a report which was not briefed to 

me or briefed to other individuals. It was a report which is a 

classified report. 

MR. GORTON: So you didn't know of its existence? 

ATTY GEN. ASHCROFT: No, it turns out, when I learned of its 

existence, these are the very things we did following September 

the 11th. We began to address suspicious situations by being 

very aggressive in charging criminal violations, in charging 

immigration violations. We began to be very aggressive in our 

work at the border. We -- and these are the kinds of 

recommendations that were involved in the report, which was 

simply not made available --
161

MR. GORTON: Attorney General Ashcroft, there is no question 

about how aggressive you were in that period of time, and I 

think it highly admirable. But the Administration of which 

you're a part didn't take any of those actions before 9/11. 

ATTY GEN. ASHCROFT: That's exactly correct. And this report 

would have recommended and signaled to us that this was the way 

that we might consider acting. And as a matter of fact, the 

report signaled that it would be appropriate and perhaps 

necessary. It signaled a significant risk that those involved in 

the after-action assessments of the millennium plot believed 

would merit us being more aggressive. 

MR. GORTON: Thank you, Mr. Attorney General. 

Thank you, Mr. Chairman. 

MR. KEAN: Commissioner Fielding. 

MR. FIELDING: Thank you, Mr. Chairman. 

Mr. Attorney General, thank you for being here. Thank you for 

all the assistance you provided to our commission and also thank 

you for all your years of public service. 

You said in your prepared statement this afternoon that in 

discussing the debate on the nature of the covert action 

authorities, that in February 2001, shortly after becoming 

attorney general, you reviewed those authorities. And your 

thorough review revealed no covert action program to kill Bin

Ladin. Is that correct? 

ATTY GEN. ASHCROFT: I believe that the covert action plan I 

reviewed was to capture Bin Ladin. And if he were to be killed, 

it would only be in the eventual circumstance that there was 

some kind of inability to capture that resulted in a threat 

being -- that required some kind of self-defense measure. 

MR. FIELDING: Well, what briefings did you seek in February 

to review this whole situation? 

ATTY. GEN. ASHCROFT: Well, I was part of the consideration of 

the strategy regarding Osama Bin Ladin to the extent that it 

related to the treatment and the pursuit of Osama Bin Ladin

himself. So this was one of the responsibilities I had. 
162

MR. FIELDING: Now -- I'm sorry, sir -- what briefings did you 

receive? What were your sources of information when you were 

making this review of authorities? Did you -- were you briefed 

by the -- Director Tenet? 

ATTY. GEN. ASHCROFT: I'm not sure exactly where all the 

information came from that I was privy to at that time. We were 

very confident that this individual had been involved in very 

serious acts against the United States, in the embassy bombings 

and the like, and we felt that we had a relative assurance that 

he was involved in the Cole attack. We knew the Khobar Towers 

was what we considered to be Iranian Hezbollah, so it was a 

different group, but in my judgment just knowing about the 

embassy bombings, the loss of life there, we all understood that 

a fatwa had been issued regarding his desire to kill Americans. 

MR. FIELDING: Now I appreciate that, General. Excuse me for 

interrupting you, but we're playing with a clock here. But what 

I'm trying to determine is, did you review MONs, for instance? 

Did your staff provide you with documents so that you could 

review the existing authorities? 

ATTY. GEN. ASHCROFT: I believe they did. 

MR. FIELDING: Is there -- did you request documents from 

agencies? Did you request documents from the CIA? 

ATTY. GEN. ASHCROFT: I'm not capable of telling you exactly 

how all the information was assembled. I just remember that 

these -- having made the assessment of the information, I was 

struck by the fact that I believed that it was so complex and 

convoluted that it would be paralytic, and that we owed people 

in the field clear direction, and that the direction should be 

to find and kill Bin Ladin and not to try and capture him. 

MR. FIELDING: Did your staff prepare a briefing for you? Is 

there any written documentation of the process that you went 

through to make this evaluation? 

ATTY. GEN. ASHCROFT: I'm not in a position to remember 

whether or not they did at this time. 

MR. FIELDING: We would request that you check that. And the 

reason I'm asking is, I must advise you that we have received 

recent information in regard to MONs that -- which I believe may 

alter your evaluation of existing authorities in February of 

2001. 
163

ATTY GEN. ASHCROFT: Well, I -- I took that seriously when 

Commissioner Ben-Veniste mentioned it to me. I've made a note of 

it. And unless I am missing a bet big time, my staff has made a 

note of it, and we'll work to understand that more thoroughly. 

MR. FIELDING: Well, thank you, sir, because we would 

otherwise want to review this with you in closed session, 

because it's obviously very highly classified, unless there's an 

opportunity to have this declassified, so that we can supplement 

our staff's statements as well. So thank you. We'd appreciate 

your cooperation in that regard. 

And thank you, Mr. Chairman. 

MR. KEAN: Thank you, commissioner. 

Congressman Roemer. 

MR. ROEMER: Thank you, Mr. Chairman. 

Welcome, general. Thank you for your time here and your 

fulsome testimony. I want to turn to page three of your 

testimony and where you're talking about being aggressive and 

doing something about Osama Bin Ladin. You -- you certainly 

think Osama Bin Ladin is somewhere overseas, correct? 

ATTY GEN. ASHCROFT: I don't know where he is --

MR. ROEMER: Know where he is. 

ATTY GEN. ASHCROFT: I don't believe he's in the United States 

of America --

MR. ROEMER: You don't believe he's in the United States, and 

you want to go get him. And you go to the national security 

advisor to the President, and you say, Let's find a way to get 

him. 

ATTY GEN. ASHCROFT: I -- I -- I said that we should find and 

kill him, that should be the objective of our government. 

MR. ROEMER: So, you're being aggressive. You're certainly 

trying to focus on the threat of Bin Ladin. Let me ask you a 

question about al Qaeda. 

With the U.S.S. Cole, we lose 17 sailors. The Clinton 

administration gets a preliminary judgment in December of 2000 
164

that says, well, we can't quite associate this with command and 

control of Osama Bin Ladin, but these are definitely al Qaeda 

operatives. You, I believe, your Administration gets a briefing 

in January. Same type of briefing: this is al Qaeda. Why don't 

you take this on the offensive like you do Osama Bin Ladin and 

say, We are going to go get al Qaeda, they can't do this to our 

military, to our sailors, to our people? 

ATTY GEN. ASHCROFT: Well, Commissioner, I didn't get the 

briefing in January. As you may remember, I was one of the late 

confirmed -- individuals confirmed --

MR. ROEMER: When do you understand this, then? You're 

certainly in March meeting with Condi Rice to do something about 

this. Why don't you do something about al Qaeda? 

ATTY GEN. ASHCROFT: Very frankly, we didn't get confirmation 

that the -- as I explained earlier, that the command and control 

of al Qaeda might be involved in this matter until substantially 

later. 

MR. ROEMER: Can you remember when? 

ATTY GEN. ASHCROFT: I believe it was either late in the 

summer or the fall of 2001 when the final determination was 

made, and that was a time after which I believe we brought 

criminal charges, although obviously those are not resolved. 

MR. ROEMER: A law enforcement --

ATTY GEN. ASHCROFT: There is -- and it is a totally different 

world than -- the executive responsibilities, in regard to 

presidential orders and directives, are different than --

MR. ROEMER: But why not go after al Qaeda? Why not militarily 

go after al Qaeda, rather than a law enforcement type of 

activity? 

ATTY GEN. ASHCROFT: Well, first of all, let us make it clear 

that it's not either/or. The mere fact that we would go after al 

Qaeda doesn't mean that we wouldn't also pursue, and have the 

option of criminal remedies as well. The Justice Department has 

done that and continued to do that even against individuals who 

might be involved in al Qaeda or in more war-like settings. 

If you're asking me why the Administration didn't make a 

judgment, I believe that the Administration, while it understood 
165

that there were ties to al Qaeda by those who were involved in 

the Cole bombing, that the kind of information that would 

support a different judgment was not existent until 

substantially later. 

MR. ROEMER: But again, you're asking for a final conclusion

rather than a preliminary judgment that said al Qaeda is 

responsible. Al Qaeda did this. Al Qaeda killed our sailors. Why 

have to wait six, eight months down the line to say this is a 

particular individual, Osama Bin Ladin? 

ATTY GEN. ASHCROFT: I don't understand your question, sir. I 

believe that before we --

MR. ROEMER: This is not just a terrorism fight against Osama 

Bin Ladin. 

It's al Qaeda. It's jihadists. It's the conveyor belts 

producing people that want to kill us in Afghanistan. So my 

question is, why not go after broadly that group of people 

rather than one single individual? 

ATTY GEN. ASHCROFT: Well, I believe that's eventually what we 

did. But obviously, it's not a decision we made, and we didn't 

have the kind of information or predicate upon which to make 

that decision earlier. Whether or not we should have absent that 

predicate is a policy judgment that certainly wasn't mine to 

make. 

MR. ROEMER: Thank you, sir. 

MR. KEAN: Senator Kerrey. 

MR. KERREY: Attorney General Ashcroft, very nice to see you. 

I'm glad you're on the mend. 

ATTY GEN. ASHCROFT: Well, I'm coming back, to the 

gratification of some and mortification of others. (Laughter.) 

MR. KERREY: Well, I'm going to get into the mortification 

piece here in a minute. (Laughter.) 

ATTY GEN. ASHCROFT: You're going to what? Help the 

mortifiers? 

MR. KERREY: (Laughs.) No, no, no. 
166

A couple of statements just for your information. In the -- I 

think '95 and '96, it was, Senator Specter and I, after learning 

of significant computer and communication inadequacies in the 

FBI, asked one of our staff to go over and do an evaluation of 

what the FBI -- that was a fast five minutes. 

ATTY GEN. ASHCROFT: When you're having fun. 

MR. KERREY: Yeah. And came back and recommended that we 

authorize and appropriate several million dollars to do some 

evaluation. And I've got to say it was a very unhappy 

experience. And I say that because there were a lot of us who 

simply didn't think the FBI could do it. It was sort of like the 

IRS. You remember the whole IRS restructuring effort. That 

actually began with the IRS lousing up a several-billion-dollar 

computer investment. So I just ask you to look at that. 

ATTY GEN. ASHCROFT: If I might comment on that, one of the 

real contributions of Louis Freeh as director of the FBI was 

that he began to reach outside the FBI in order to get help. And 

the FBI had been an insular agency of very capable people, but 

they really began to be injured by their own talent. They really 

thought they could do everything on their own. And Robert Dies 

was the first of the known experts to me to come to the FBI from 

IBM to begin to say: Here's the way a modern information 

architecture should look and here's what should be done. 

So you were prophetic in saying that it needs something other 

than just the old agent corps. 

MR. KERREY: Same thing with IRS. Until Rossotti got there, 

nobody really trusted they could get the job done. 

ATTY GEN. ASHCROFT: And I think what we're doing now, we're 

beginning to use software and other things that are developed 

outside and beginning to accept expertise from outside the 

Bureau that's very, very helpful to us. And the commercial world 

has things like link analysis, and the like, that they use 

commercially that can be very helpful to us in investigations 

and also connecting the dots when we want to organize 

intelligence. 

MR. KERREY: The second thing I wanted to say -- and I need --

this is just -- I need your help on this because I was not in 

the Congress when the PATRIOT Act passed. And you know me well 

enough to know that anything that you have to put the word 
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"PATRIOT" on in order to get people to vote for it, I'm inclined 

to vote against it just on that basis. (Chuckles.) 

ATTY GEN. ASHCROFT: I do know you, yeah. 

MR. KERREY: And in this case, now looking at it -- the only 

thing I've heard about it, by the way, so this is a 

mortification area, I've heard a lot of my former Democratic 

colleagues giving fervent speeches against the Patriot Act. They 

all voted for it -- (laughing) -- but they're giving speeches 

against it! It's a weird situation. 

ATTY GEN. ASHCROFT: That's not weird, that's rather usual. 

MR. KERREY: (Laughs.) Anyway, I am concerned that Section 218 

could end up like RICO being used -- you know, it starts off 

against organized crime but ends up -- you know, abortion 

protests, using against business. It really has a life of its 

own beyond. 

And I don't need a comment now, General Ashcroft, just that 

and Section 215, I need some help -- I've got some questions 

about it, and I trust that you can help with me with an open 

mind try to figure out where we need to preserve the PATRIOT Act 

and where we may have some provisions in there that we actually 

don't need. 

I mean, just generally, I'm very nervous about giving 

government too much power, frankly, in the long term. I don't 

need to lecture you on that, but I get nervous about giving the 

government too much power. And it seems like the PATRIOT Act 

gave the government an awful lot of power over American 

citizens. 

ATTY GEN. ASHCROFT: Let me just comment that in large 

measure, the PATRIOT Act extended powers in the fight against 

terror that were already well-understood powers in the fight 

against drugs and organized crime, so that we weren't treading 

down new constitutional territory. The multi-point wiretap or 

the roving wiretap had been in existence for 14 years and 15 

years. 

And the ability, for instance, to subpoena business records 

from grand juries had been in existence for a long time. Now, 

the FISA provisions that relate to it are different from grand 

juries. A grand jury, frankly, operates with a U.S. Attorney or 

an Assistant U.S. Attorney reaching over on a stack of forms and 
168

filling it out and taking it out and serving it. It's never seen 

by a judge unless someone resists it or protests it. Under FISA, 

you can't have an order without first seeing the federal judge, 

or unless it's an emergency order, and then it has to be brought 

before a judge within 72 hours. There's a lot of safeguards 

here. 

I'd like to talk to you about it. 

MR. KERREY: I --

ATTY GEN. ASHCROFT: It is important to our national security. 

MR. KERREY: Also, staff has asked and I appreciate if we 

could get some documentation that shows what the detain-andclear policy did for counterterrorism, for intelligence, for law 

enforcement. I mean, I guess 768 detainees -- and that's been a 

very controversial thing. And if you can give us some 

documentation of what the counterintelligence --

ATTY GEN. ASHCROFT: Yeah, I'd love to -- I'll comment on 

that. We did not detain anyone that was not in violation. So 

people who were detained were violators of the law. 

And our history has been that when you detain people for 

immigration violations or you charge them, if you don't detain 

them, they go. They just evaporate. Eighty-five percent of all 

people charged with violations, if they are finally adjudicated 

guilty, if you haven't detained them, they just merge into the 

culture. Ninety- three percent of the people who come from 

terror-sponsoring states have a record of absconding. So they go 

into the culture. 

We couldn't afford to have a situation like that with 

individuals who were detained in conjunction with the massive 

investigation following 9/11. We had to hold them, we did, and 

frankly, that's one of the ways that we picked up a fellow named

al-Marri, who first got -- who was sent here on September the 

10th to be a facilitator of follow-on attacks. We first had him 

on immigration charges, then on criminal charges. We eventually 

-- he has become an enemy combatant and is now being held --

MR. KERREY: I appreciate that. Your staff was nodding like 

mad when I asked for the documentation, so --

ATTY GEN. ASHCROFT: Okay. Let them --
169

MR. KERREY: Yeah. Thank you. 

MR. KEAN: Commissioner Gorelick. 

MS. GORELICK: Thank you, Mr. Chairman. 

You said in response to -- I think it was Commissioner BenVeniste's question -- that you indeed were -- had been struck 

from the list of senior executives in the Administration who got 

the Presidential Daily Brief. I think you said you did not get 

it. And that is curious, I think, given Dr. Rice's testimony 

that the domestic aspect of our national security was largely in 

the Department of Justice and FBI bailiwick. 

You, when you were interviewed by our staff with regard to 

the adequacy of the FBI's response to the intelligence that was 

coming out in the summer of '01, said that you accepted the 

FBI's assurance that the threats were overseas and sort of 

assumed that things must be in hand, and that whatever they were 

doing was adequate to respond. And then you said, I think quite 

candidly, that this was a dangerous assumption to make. 

Now here is my question. You did not get the Presidential 

Daily Brief, but you did get the Senior Executive Intelligence 

Brief that was provided to the next rung of the government. 

Is that -- is that correct? You got that daily? 

ATTY GEN. ASHCROFT: The SEIB --

MS. GORELICK: The SEIB.. 

ATTY GEN. ASHCROFT: -- was available to me. 

MS. GORELICK: On August 7th, 2001 a SEIB that reflected much 

of, although it was not identical to, much of the content of the 

August 6th presidential daily brief came out. And I would like 

to ask you if you remember seeing a document headed "Terrorism: 

Bin Ladin Determined To Strike In The United States" in the 

SEIB. 

ATTY GEN. ASHCROFT: I do not remember seeing that. I was in -

- I believe I was in Chicago at American -- speaking at the 

American Bar Association meeting, I believe, at the time. So I 

do not have a recollection of seeing that. 
170

MS. GORELICK: Did you staff regularly brief you on the 

intelligence when you returned? 

ATTY GEN. ASHCROFT: I was briefed. And items of interest were 

noted for me from time-to-time by my staff. 

MS. GORELICK: Would -- would something like this, which is a 

memorandum that is going out to your colleagues, hundreds of 

your colleagues in the government, saying that Bin Ladin is 

determined to strike in the United States, been an item of 

significance that you would think would have been briefed to 

you? 

ATTY GEN. ASHCROFT: These items had been briefed to me. They 

had been briefed to me by the FBI, they had been briefed to me 

by the CIA. The Administration asked me to get briefings when 

appropriate in regard to these measures. I remember Ms. Rice, 

for example, early in July during the threat period and the 

heightened and elevated threat, asking me if I would receive a 

briefing from the CIA because she thought it important. It's 

that kind of briefing that I received early. The CIA -- we have 

reconstructed it from the slides they used -- talked a lot about 

the threat overseas. And we obviously were aware of the 

historical information that Osama Bin Ladin had issued 

statements years before, much of which is in the SEIB and was in 

the August 6th PDB, which I have now read. And -- but we 

inquired of the CIA and the FBI, are there domestic threats that 

require -- is there any evidence of domestic threat, and they 

both said no. I might add that for the CIA, I inquired of them, 

are there things we can do additionally by way of FISA to assist 

you in making sure that we have all the information necessary to 

be aware of those threats? 

And they assured me that if they needed additional help they 

would ask for it. 

MS. GORELICK: So you were aware in August -- in early August 

-- by at least early August of '01 that, in addition to the 

fatwas and the statements of intention by Bin Ladin, that there 

was evidence that he intended to strike in the United States. Is 

that correct? 

ATTY. GEN. ASHCROFT: I don't know if, in addition to the 

fatwas and his statement of intention, we were aware that he had 

stated his intention, of the historical items mentioned in the 

SEIB and I believe also mentioned in the PDB. We were aware that 

those kinds of historical references had been made, and it was 
171

with that in mind in conjunction with our understanding of what 

he had done in terms of the bombings in Nairobi and Dar es 

Salaam that we understood him to be very -- a serious individual 

and that we should take him seriously. 

MS. GORELICK: As a result of your awareness of this domestic 

threat, did you review with Acting Director Pickard the specific 

actions that he had taken to ensure that information in the 

possession of agents of the FBI across America relating to Bin

Ladin's threats, his capacity, his ability to strike us, 

activities that might be going on in the United States that that 

information would be flowing up to you? 

ATTY. GEN. ASHCROFT: I queried the director on numbers of 

occasions about threats in the United States that would require 

our attention. I expected those queries to result in the kind of 

activity which we saw in the FBI across the summer not only in 

the face-to-face inquires at the SAC meetings, but in the 

telephone inquiries and in the communications -- through the 

electronic communications as well as the INLETS, which shared 

those awarenesses with the rest of the law enforcement community 

in the country. We viewed INLETS as a force multiplier because 

we got away from just the 12,000 FBI agents to the 700,000 or so 

law enforcement officials in the country, and we wanted those to 

be pulsed as well. 

MS. GORELICK: Do you know if any of the INLETS actually 

produced any information to the FBI? 

ATTY. GEN. ASHCROFT: I do not know, and would not be 

expecting to know what 700,000 or so law enforcement officials 

might be saying to the people in the FBI Joint Terrorism Task 

Forces around the country. And all -- I'm sure they were saying 

lots of things, but obviously I wouldn't be aware of those. 

MS. GORELICK: Thank you very much. 

MR. KEAN: Thank you, Commissioner. 

Attorney General, thank you very, very much for your 

appearance, for your help. You've helped our work and we 

appreciate it. 

ATTY GEN. ASHCROFT: Thank you. 

MR. KEAN: Thank you. 
172

The hearing will now be adjourned till 9:00 tomorrow morning. 

END.